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.

tbd advanced publishing starter kit

562 Comments

  1. Kimberly J Lundy

    I am a freelance editor, and an independent publisher I know sent me a manuscript for a short book to be published for use in the author’s medical school courses (with the intention to sell it commercially in the future). The manuscript is a chapter-by-chapter review/critique of another widely available book and presents an alternate process created by my author to address what he has identified as shortcomings of the previous approach. The new text goes so far as to use the same chapter names and includes a rather large number of short quotes and terms from the original text. My concern is that the use might exceed the standard of fair use and require specific citations for each quote (at the least) or some kind of permissions (at the most). I am not familiar with the original book, so I cannot determine whether or not these constitute the heart of the content, but it certainly seems that (if successful) it could potential affect the market value of the original book. Should I advise the publisher to seek legal advice or to contact the

    Reply
    • Sharon Goldinger

      Kimberly, your instincts are right on. Yes, absolutely recommend he/she consult with an intellectual property attorney.

      Reply
      • Omar

        As Sharon says, of course you or the author needs to consult an attorney because it seems like the fair use is not the case

        Reply
      • Kimberly J Lundy

        Thanks so much!

        Reply
  2. Omar

    Hi Joel!
    I know you since I read CS community and even because Michele Ametrani talked to me about you. I hope you have the time to read this long post!
    I bought already a picture in Depositphotos.com with Extended Licence. The picture is about one child and I would put it in my cover. The picture is uploaded about 10 years ago, so the kid must be around 16 years old right now. The child do not represent any subject inside the book’s story, the protagonist are only two and both adults and it speaks about spiritual love and inconditional love, but even points of view of life, religions and other thoughts that the protagonists talk and express during the conversation. I put the image of a child because he would represent the children in the world, so he does not represent any character of the book. In fact the children are mentioned several times in the book in a very nice, useful and kind way.
    I carefully read the license terms and there are a couple things that made me think of eventual situations that could happen, but I suppose this doubt it is just my worries that sometimes I deeply check to be totally sure it is not really something to worry about.
    The terms of license say in two points that I do not have to use the picture in these cases:
    1_Use the File in items or products that could embarrass or humiliate a person or model in the File;
    2_Display, use or post the File in a way that would lead to the conclusion that the model in the File approves of or endorses the items or services of any venture or trademark;
    So my doubt is that as adult, the child-model in the picture could not agree with the spiritual topic treated inside the book, because and could claim that he feels embarass or humiliate by it, as his picture is in the cover or could even sais that it looks like he approves or endorses ideas, beliefs that he does not share. Could I have troubles for it? I mean that the word “embarass” looks to me too much general and can have very personal interpretation.
    I suppose that I should not have problems because if I could, that means that every model could sues somebody because he does not share his ideas…
    I am sorry if this question looks stupid, but I just want to do things properly and every little doubt have to be checked
    Thanks for your time!!!
    Regards!!!

    Reply
    • Sharon Goldinger

      Hi, Omar,

      The best advice I can give you is to quote my attorney: to be safe, don’t use it; find another photo. It’s not worth the risk.

      Reply
      • Omar

        Thanks a lot! Sharon!!! I won’t use it anymore, I found many answers like your! Anyway somebody told me that if the model is from behind, so you can’t see the face there is not risk, what do you think about it?
        I have doubts on it, because even if the idividual is from behind, anybody can still search the picture on the mains stock-photos online and finding it means find as well the photografer, so most of them take several picture of the same model and inside his account you can find the same individual in others photos where the face is recognizable. I would be curious to know who would be the responsible in this case.

        Reply
        • Sharon Goldinger

          Omar, it probably is safer but if it were me, I would still find another photo.

          Reply
          • Omar

            Thanks a lot Sharon. I Will definetly

  3. Joseph Victor

    Hi, thanks for the informative article. I am writing a fantasy novel and intend to have various characters sing songs that are parodies of real-life songs. Every specific word and meaning will be changed. If I credit each original artist and song, would this qualify under Fair Use?

    Reply
    • Joseph Victor

      Oh, also, I should mention that the work itself is a form of parody, as I will be lampooning various fantasy tropes.

      Reply
    • L

      I want to write a non fiction book dealing with the relationship between a celebrity singer and a political figure. The singer has mentioned this politician in his songs and political issues in his songs but if I quote the songs I fear I would get sued. It seems kind of ridiculous when the lyrics are all over the internet and yet I know there is still a strong possibility I could get sued? But is it fair use if I’m using them to show the relationship between the two men? If I use only a line or two here and there? I know it’s still possible to be sued for only using a line or two. I do intend to try and make money from the book.

      Reply
  4. Sachin Patare

    Sir

    I am a huge fan of UFC from the past few years. I have just now started on with blogging. My query is if I can make pencil sketches out of the images available on website and use it for my blog by providing the image source(concerned website), will that be considered as an infringement?

    Regards

    Reply
    • Joel Friedlander

      Sachin, providing the image source won’t help. While re-drawing might seem safe, you may also create “derivative works” and that could be a problem. I would suggest getting legal advice before you start your project.

      Reply
  5. Abby Workman

    Hello. I am a camper enthusiast and try as I might I can not find general guide books on makes and models. I own an Apache Pop-up camper from the classic line of the 60’s and 70’s. I am also an English major and would like to publish books about campers.
    My question is:
    If I compile general information about the types of Apache campers released from 1960-1980 using submitted photos from Apache owners for inclusion and reference, what are the repercussions of using these photographs? Also, if I include scans of the owners manuals from the Vealey company for referee, would I need to contact them? The text will be my own research with citations when necessary.

    Reply
    • Abby Workman

      Autocorrect strikes again!

      It should read ” Vesley company for reference”

      Thanks!

      Reply
    • Sharon Goldinger

      Abby, you’ve asked some great questions. If it were me, I would make a quick call to an intellectual property attorney to discuss each of your questions to learn if you need permission (from either the owner of the RV or the manufacturer) and what that permission form should include.

      Reply
  6. Sage

    Hello — I hope to publish a memoir. I have contacted several companies that own the copyright on lyrics I want to use. However, there are 2 that are very brief.

    (1) “Feed your head,” Jefferson Airplane told us.

    (2) Instead of using the actual quote from a “Star Trek” episode, I paraphrase:

    Spock responds that he didn’t have much to say. Yet, for the first time in his life, he was happy.

    (The actual line from the episode was ” I have little to say about it, captain. Except that… for the first time in my life… I was happy.”

    Q: Which of the above falls under Fair Use?

    Thank you.

    Reply
    • Sage

      I apologize for posting too soon. (My original query was posted at 12:04 am).

      I should add that I asked a well known figure in the publishing industry, a former CEO of HarperCollins, about excerpt #2. And she didn’t think I had a problem.

      I’ve just edited my paraphrase:

      Spock doesn’t have one. However, he confesses that, for the first time in his life, he was happy.

      Thank you again.

      Reply
      • Sharon Goldinger

        Sage, I’m not an attorney and I don’t play one on television but from the way that you have paraphrased the words in question, I don’t think you should have a problem.

        Reply
  7. Sharon

    I have just finished writing a 30 day devotional for women. I have Used two quotes at the bottom of each day from various famous people. Maya Angelou etc.. would that be considered fair use.. so there are about 30 short quotes in total in my book from a variety of people .. also do I have used two scriptures at the beginning of each daily reading from the NIV bible.. is that also fair use?

    Sharon

    Reply
  8. fs

    Hi. I’d like to make Youtube videos using Korean song lyrics to teach Korean. I will not play the song audio. I will use the entire song. I will write my own vocabulary list and translation. I would like to monetize the videos. Will this violate Youtube’s copyright system?

    I used to run a Korean lyrics to English translation website and was approved for Adsense Google Ads. Youtube videos just seem to be stricter.

    Reply
    • Sharon Goldinger

      Fs, I’m not an expert in this area but it sounds like it may be a problem. I would read every word of Youtube’s terms of use and send them a direct inquiry if it’s not clear after you’ve read them.

      Reply
  9. Tahmim Reza

    Hi, I am writing a novel that is based on someone inspired by the works of Roald Dahl. In my writing I describe small bits of things that happen in the book though I never quote anything from the books. I write about all the things my character learned by reading Roald Dahl’s books.

    So my question is whether it is legal to mention and describe bits from the originals and could I ever publish the book if I wanted to someday.

    Any feedback would be much appreciated,
    Thanks.

    Reply
    • Sharon Goldinger

      Tahmim,

      From the way you have described the book, I wouldn’t think you’d have any problem. If you end up quoting from any of Dahl’s books, be sure not to use too much and to cite the quoted material properly in an endnote. Sounds like an interesting project. Good luck.

      Reply
      • Tahmim Reza

        Thanks for the help.

        Reply
  10. Thomas Cady

    I want to write a book based on the song “Paperback Writer” by The Beatles. If I don’t quote it, just use the idea, is it fair use? Will I be sued? Should I ask for permission to use the idea?

    Reply
    • Sharon Goldinger

      Thomas, without a lot more details, it sounds like it may not be a problem, but I come from the house of “better to be safe than sorry.” So if it were me, I would consult an intellectual property attorney.

      Reply
      • Thomas Cady

        Ta for answering! I really appreciate it! I apologize for the late response, though. Have a nice day.

        Reply
  11. Dale

    I’m writing a semi-dystopian sci-fi novel set about 140 years in the future. One of the characters is a doctor and social researcher obsessed with 20th and 21st century music, and quotes it occasionally to show her thoughts on their society. For example, John Coltrane’s monologue from The Sun (May there be peace, and love, and perfection…etc) and a line from an Atlas Sound song about enlightenment (wisdom is learnt through success and failure). Would these be considered fair use?

    Reply
  12. L Francisco

    Say I’m doing a children’s book called “Goodnight Baboon,” based on “Goodnight Moon,” using rhyme scheme and specific visual elements (such as cover design and font styles), from Margaret Wise Brown’s classic. Plan is to self-publish and sell the book.

    While similarities abound, there are many differences: art styles, characters, settings, etc.

    Acceptable under Fair Use?

    Reply
    • Helen Sedwick

      L Francisco, An interesting question, but impossible to answer. Fair use is determined by weighing the four factors described in the post above. The work might be considered “transformative” (and therefore not an infringement). You might prevail against an infringement claim in some courts, but not others. It’s a risk.

      In 2008, Little Brown published “Goodnight Bush,” a parody based on the original. It’s still on the market. There is also a “Goodnight Obama” book.
      So, what you are proposing has been done, at least for political satire. But political satire is highly protected by the First Amendment.

      You’ll have to decide how much risk you want to take.

      Reply
      • Leo

        Thank you, Helen. Just discovered your response today.

        I was able to get assistance from a local Media Arts-focused law group to give a close examination of my work. I received guidance on numerous elements (including rhyme scheme, character, fonts, cover design, etc.) and notes on which elements look “infringe-y.”

        Reply
  13. Debbie

    What about a piece that is original work but references the characters in a work of fiction. For example, a book of original quiz questions written in rhyming form, where the answers are all characters and places from Harry Potter, Game of Thrones, Buffy the Vampire Slayer, Star Trek, or another well-known fictional universe? It’s not really fan fiction as no new storylines are introduced, and the questions become a work in themselves as they are each original poems. And you have to read/watch the original work to answer the questions. Does this require permission? And what sort?

    Reply
    • roze albina

      Those materials are still in circulation, being sold for a profit by the authors and publishers, still showing on television, you need permission if you are going to profit from your book. Those materials are copyright protected. You can find yourself in a lot of financial trouble with lawsuits.

      Reply
      • Lauren

        Would that also cover if you were to, say, publish a collection of essays about the stories and characters? I’ve seen a published book written by a psychologist that is a collection of essays psychoanalysing Doctor Who, the characters, and the events of the series; you can probably imagine there are heavy referencing to the show and the characters. If I were to write a series of essays on different aspects of Harry Potter and the Potter universe, the morality of characters, theories regarding certain events, ideas about the magic and government, etc etc – that would fall under the same sort of thing?

        I seem to remember the psychology book on Doctor Who made zero mention of having any affiliation with the BBC or permissions from the copyright holders, which I thought was odd.

        Reply
  14. Kayod Marino

    Hi, is it okay if i copy an e-dictionary and make a mobile app? the app that i want will contain ads and i get paid for it. do i have to put the publisher’s name on my mobile app?

    Reply
    • Sharon Goldinger

      Kayod, it doesn’t matter if a work or document is in print or online, the person who wrote it has the copyright and you can’t copy the whole document without permission or a license. This article will be helpful in answering your question: https://www.thebookdesigner.com/2013/03/5-top-legal-issues/

      Reply
  15. Mimi

    Hello! I’m in the process of making a fashion and lifestyle blog, and I’m really fixed on a specific title. The domain and trademark is open and has not been registered, so I was pretty happy about that and I was going to purchase the domain already and maybe even trademark it.

    However, when I googled it, I found an existing fiction novel with the exact title and it is copyrighted. The title is not really a famous, distinctive one containing specific nouns and the words seem pretty general to me. I tried my best to work around changing some words, but there really is no way of doing that without having a really long title.

    My fashion and lifestyle blog is not fiction nor narrative in any way and it is more like a fashion and style journal displaying my daily outfits. I really want to use that title and was hoping you could give me some advice if its something I can use without being charged for copyright infringement.

    Thank you and I hope to hear from you.

    Reply
    • roze albina

      If it is the same genre as you are writing, then you may want to add or change the title.

      Reply
  16. Jake

    Can a fiction novel be written, set in another fiction created by company xyz under fair use IF the author includes the company supplied copyright/trademark notice in the novel saying the universe the book is set in was created by and is a trademark of xyz?

    I.E. even though company xyz created the universe the book was set in, can an author write their own independent story using that universe as the realm or genre it is written in?

    Again, a notice was posted publicly by the company that anything done within the universe or using the universe must include their copyright/trademark notice.

    The best way I can describe what I mean is, Blah Blah universe was created by xyz company with planets, stars, ships etc.

    An author writes a novel that is set in that universe and gives full credit for the company for that setting the book is written and set in. Is that fair use?

    Reply
    • Sharon Goldinger

      Jake, the best person to answer that question is an intellectual property attorney.

      Reply
    • roze albina

      Simply. No. Not without permission.

      Reply
  17. David Moglia

    I hope you can help me out. I am looking to publish a book I’ve written on a Civil War regiment from New York. Since it is a work of historical non-fiction, I’ve used quotes that have come from old newspapers (that have since been digitized and put online) and very old photos. I have given the sources of these works credits. Since I intend to publish this work, do the quotes I have used constitute fair use since I found them online? Or do I need to seek permission, from the source of the digitized version of that article story or quote? I’ve been agonizing over this as I’ve never published before. Any help would be greatly appreciated. Thank you in advance. Dave

    Reply
    • Sharon Goldinger

      David, you’re off to a good start by giving the sources of the work (presumably in a complete endnote). It really depends on how much you are quoting as to whether or not you are going to need permission. I’m assuming you’re only quoting a few words or maybe a sentence or two? I’m not a lawyer so I can’t give you legal advice but if it’s very short, I think you should be okay. If you’re not sure, you can check with an intellectual property attorney, try to get permission from the newspaper (if it’s still in business) or contact a permissions company to assist you with the process. If the newspaper is no longer in existence, I think you should be fine.

      Reply
  18. Vince

    I simply want to use a quote (a few lines) from another published work as a mood-setter for the beginning of a book. Is this something that anyone has any experience in and can tell me if I would require permission?

    Reply
    • Sharon Goldinger

      Vince, according to section 1.36 of the Chicago Manual of Style (the style manual used by the publishing industry), an epigraph is “a quotation that is pertinent but not integral to the text–used at the beginning of the book (or a chapter). If it is used this way, you shouldn’t have a problem using it (presuming it’s a written work, not a song). “The source of an epigraph is usually given on a line following the quotation.” If you are using the quote in the body of your book then you will need to at a minimum include an endnote (or a footnote) with the complete source citation.

      Reply
  19. Zabir

    Hi, I’m writing a book which includes quotes from books which were written over 50 years ago. Is it fine to copy from books which has been published more than 50 years?

    Reply
      • Zabir

        Thanks for article but it dosnt say if an author can copy short parts of books which author has died over 50 years ago as I’m getting told by people thata the only time you can copy?

        Reply
  20. Athan

    Dear Joel,

    This is a great article and thank you for your patience in answering all these follow up questions.

    As a small, very small, book publisher (also editor/graphic design/promotion etc. to – 1.5 book per year average for 15 years) I have an issue where someone bought an Ebook version of our copyrighted book of articles and quotes that I compiled over the course of 5 years and then self-published. You know how THAt goes.

    We’re about to re-print meaning we’ve sold 4000 books in a highly specialized market.

    Last week a person started posting quotes copy/pasted from our Ebook on their new Face Book page. Within days 12 posts contained 5 or more articles directly lifted from our book.

    To be fair, on the original material at the bottom of the post they put the title of the book. They dd not ask for permission or contact us in advance and I fear the whole book will be on the FB page before long…

    They state that it is “fair use” for social media. What do you think? Just another head-ache and time taken for the small publishers…

    Thank you in advance.. (looking into your book for what else might be heading our way…)

    Reply
    • Sharon Goldinger

      Athan, I’m glad the article was helpful. There are several steps you can take–including doing nothing. You can contact Facebook and bring this matter to their attention. You can contact the poster and ask them to cease and desist (or at least ask for your permission with full attribution). You can contact an intellectual property attorney and get him or her involved. This may not be a cheap step, but if you’re really worried and it’s worth it to you financially, you might want to consider it.

      Reply
  21. Erik Klass

    Here’s a tough one. I am writing a tutorial for the SAT. The new SAT’s writing (essay) assignment involves writing an essay on another author’s “persuasive argument.” These arguments typically take the form of actual newspaper editorials, each reprinted in its entirety (about 750 words). So my questions: In my tutorial, can I include example articles under fair use? It’s for education. It’s for commentary (mine, my students). It’s clearly a novel use of the content, and does not compete in any way with the source. My big concern is that I’d be necessarily reprinting the entire article (that is, a large portion of the article, but a small portion of the newspaper). (I have no idea whether the SAT gets permission or claims fair use.) Any ideas?… Thanks for a great page.

    Reply
    • Sharon Goldinger

      Good question, Erik. If it were me, I would consult an intellectual property attorney to inquire about whether I needed permission or not. Reprinting an entire article without permission for this purpose may be problematic.

      Reply
      • Erik Klass

        Thanks for the reply. That’s my concern as well (printing the entire article). I’ll report back if I get any more information on this.

        Reply
  22. LaShelle

    Hello. I just finished writing a self-help parenting book and at the end of every discussion, I ended with quotes from various well-known speakers. The bulk of the information is my own words, but I found the quotes to be liberating. I do plan on selling the book. Would that be fair use or do I have to get permission?

    Reply
    • Sharon Goldinger

      LaShelle, these kinds of quotes are called epigraphs and often used at the beginning or end of a chapter. Presuming you are not using too many of them (how many discussions?) you shouldn’t have a problem. I’m not an attorney and if you are concerned or are using more than one or two in a chapter, you might consider consulting an intellectual property attorney to make sure you won’t have a problem.

      Reply
      • LaShelle Cooper

        Thank you so much for responding. I am using one quote at the end of each chapter from various persons. I will make sure to consult with an attorney, add you recommended just in case.

        Reply
  23. Muhammad Noman

    i am writing a book but for knowledge purpose i used too many websites but i write their examples or any other research in my own context or words. Can the copyright holder sues me on that please explain me thanks.

    Reply
    • Zabir

      Don’t bother. I tried this but found out its illegal and I’ve contacted the people direct through phone and email

      Reply
  24. Nina

    I would like to use a Rumi quote on the cover of my EBOOK. Underneath stating his name.. it will sit above the title of the book. Would this be fair use as he has been dead hundreds of years?

    Reply
    • Sharon Goldinger

      Nina, you should be okay (since he’s been dead for more than 600 years).

      Reply
    • Alena

      I’m curious about this Rumi question because does the translator hold the copyright? Most of the current and popular translations are from Coleman Banks. Does this grey the area?

      Reply
  25. sen

    Can a author publish a book compiling his own chapters written in other edited books?

    Reply
    • Sharon Goldinger

      Sen, you should be able to as long as you own the copyright to those other chapters and you have reviewed the contracts of those other books to make sure there are no clauses regarding future use of the chapters. If you’re not sure, you might want to consult an intellectual property attorney.

      Reply
  26. Jasmine

    Hello, I just finished writing my textbook and want to self-publish it. I applied for a copyright, and an ISBN number, but the copyright will arrive in six months, and I have to start the teaching in a month. How can I assure that my rights are protected? Am I allowed to write that an application for a copyright is submitted? Will it protect me? Thank you for the feedback.

    Reply
    • Sharon Goldinger

      Jasmine, it’s not unusual for the copyright paperwork to take six or even eight months. The copyright for anything you write is yours as soon as you write it. I presume you have a copyright line on the copyright page of your textbook. (See this article for specific wording: https://www.thebookdesigner.com/2010/01/copyright-page-samples-you-can-copy-and-paste-into-your-book/) The paperwork from the copyright office concerns your ability to sue for damages if anyone else says your work is theirs.

      Reply
      • Jasmine

        Thank you very much for your reply! I am now using the book designer site, and it is very useful for so many applications! Thank you!

        Reply
  27. Raiven James

    Hi there, I am in a band and I am interested in writing songs based on some popular fictional lore such as The Lord of the Rings, Game of Thrones, that sort of thing. All music and lyrics are 100% my own but I may from time to time want to reference some of the characters or places within the lyrics. Would it be against the law in any possible way let’s say if I call one of my songs Gandalf the Grey & write about various places within the Lord of the Rings universe?

    Reply
    • Sharon Goldinger

      Raiven, you’ve asked some very interesting questions. My best recommendation: consult an intellectual property attorney to make sure you won’t have any problems.

      Reply
  28. John Early

    Hands down the best article I’ve found online about the incredible grey area that is ‘fair use’.
    I’m about to self-publish my first book ‘Tales of the Modern Nomad – Monks, Mushrooms & Other Misadventures’ (www.modernnomad.ca) which is heavy on both photos and quotes from other books.

    Getting permission from the authors and big publishing companies was incredibly time consuming and a very interesting process. Some asked details on how it was to be used, some wanted specific accreditation in the back of the book, some said I didn’t need to ask since it was ‘fair use’ …but all except one author/publisher (cough Paulo Coelho) deemed their permission and short quote (under 40 words) to be gratis.

    In short, if it’s worth having in the book, it’s worth asking permission. Do it.

    Reply
  29. Judith Toler

    I own a small painting and would like to use the image on the cover of a book of my poems. However, the painting is unsigned and I purchased it 20 years ago at an art fair, so I don’t have any way to contact the artist for permission. If I try my hardest to track her down . . . and still can’t find her, can I use the image under Fair Use?

    Reply
  30. Susan Laine

    So what’s the legal consensus about song lyrics? Does Fair Use allow the use of one line, two, or none at all?

    Would one be legally secure, for example, if one quoted two lines from a song in a book–but detracted the number of those words from the book’s total word count? As you know, authors are paid royalties based on word counts, and if the song lyrics don’t add to that, then there’s no commercial nature. Basically the author isn’t using the quotes to gain illegal profits by claiming the words are his/hers.

    So, doing that, and also giving credit to the singer and/or songwriter, would be okay then?

    Plus, I don’t know the exact percentage of how much you can use from a song, but what if that percent is 0.07? That’s less than 1% of the total of the song. Does that count? I mean, if the percent of what is allowed is 1% or less.

    Reply
  31. rose mae nazareno

    hi,
    here’s my concern:

    I asked my students to submit cut out pictures from their old books for the purpose of their activity..is it okay?

    Reply
  32. Raven

    Hi, would rewriting a holy book or a religious book be a violation of fair use if the I was not getting paid for the work? For example would writing and publishing a Bible, Quran, the Vedas, Pali Canon or the Gathas for spiritual purposes to reach out the message to others be considered copywrite infrigment and could potentially get me sued? Are religious works fair use no matter which religion it is?

    Reply
  33. Jennifer

    I am a teacher and our kindergarten class is learning about characters. I want to print out images of different story book characters so that my class can match them with the appropriate classroom books. The lesson and copies will only be for my classroom and I will not be selling the lesson. Will this qualify as fair use?

    Reply
  34. Mark

    Hi,

    I have written a novel and would like to use three to four line quotes as epigraphs to introduce each of my chapters. I would cite the author in each case, Is this fair use?

    Reply
    • Joel Friedlander

      Hi, Mark,

      Quotes at the beginning of a book or a chapter are called epigraphs. Generally, if the quotes are from books (versus poems or songs), you should be okay just listing the author’s name and the book that the quote came from.

      Reply
  35. Lucretia M. Brown

    I’ve just written my first fiction novel, but I used generic terms. I’m working on my second novel, and I would like to know if under the Fair Use law, am I allowed to use real product names, such as, Coke, Pepsi, Ford, etc.? If so, what are my rights, and what aren’t my right?
    Thank you in advance.

    Reply
    • KS

      Yes, you can use real products names such as Coke, Pepsi and Ford. You just have to remember that you have to use the names correctly.

      You can be sued if you write that your character was drinking a can of “Coke” which gave them liver cancer and also caused them to crash their faulty new Ford into the Pepsi factory that only employed illegal immigrants to cut costs… Basically, what I’m saying is be careful how you use the names as you can be held liable for any false or defaming claims (even if fiction like my example above) that can damage their name.

      You could say that your crazy character ate the Coke can and died… Why? Because you’re not meant to eat a Coke can, you’re supposed to drink the contents, so the character made a bad decision which killed him and not the contents of the branded can. It’s the same as saying that some idiot who ran a red light slammed into your Ford. You’re not saying that the Ford was dangerous due to a deliberate fault the company overlooked which cause an accident that killed a dozen people.

      Hope that helps you. Good luck with your story!

      Reply
      • Joel Friedlander

        KS, I appreciate your input and love reader comments, but unless you are an attorney or rights specialist of some kind, think twice before offering advice on a specific situation about which we may not know the entire story. Thanks!

        Reply
        • KS

          Below is a link on the subject specifically for writers and there are many more websites on the internet.

          https://www.rightsofwriters.com/2010/12/can-i-mention-brand-name-products-in-my.html

          Clearly, when using a service or product brand name in a manuscript even a movie, you need to be careful in they way you depict it (as per my example above) so your claim doesn’t damage their image and or reputation. No writer wants to be sued for defamation–and that is one law that would be applicable in this situation.

          Reply
  36. Yvonne Williams

    Can I use a passage from a published children’s book in my own fictional children’s book? For example: The three girls skipped down the hallway like Dorothy did with Toto, Tin Man, Scarecrow, and Lion, and singing the song from, The Wizard of Oz.

    We’re off to see the wizard, the Wonderful Wizard of Oz.
    We hear he is a Whiz of a Wiz,
    If ever a Wiz there was.
    If ever, oh ever, a Wiz there was
    The Wizard of Oz is one because
    Because, because, because, because, because.
    Because of the wonderful things he does. We’re off to see the wizard
    The Wonderful Wizard of Oz!

    Is this copyright infringement? do I need to get permission to use this in my fictional children’s story book?

    Reply
    • KS

      I would be carefully using the extract from the song itself as it may be a copyright infringement. They are lyrics after all which you would need to have permission to use.

      However, you should be okay to write:

      The three girls skipped down the hallway like Dorothy did with Toto, Tin Man, Scarecrow, and Lion, and singing the song from, The Wizard of Oz.

      As you have referenced the movie musical.

      (I believe that the title “The Wizard of Oz” may need to be in italics)

      Reply
      • Joel Friedlander

        KS, I appreciate your input and love reader comments, but unless you are an attorney or rights specialist of some kind, think twice before offering advice on a specific situation about which we may not know the entire story. Thanks!

        Reply
        • KS

          You don’t need to be an “attorney or rights specialist” to know about Copyright laws. It’s common sense and widely known that you NEED PERMISSION to use/replicate other peoples’ work (art, music etc), unless it’s public domain.

          In the above case of The Wizard of OZ, it came out in 1940 and falls between 1922-1978 which is protected by Copyright laws for 95 years. Hence, you would need permission to use these lyrics in a manuscript.

          Here is a link on the subject you may want to read:

          https://www.writersdigest.com/editor-blogs/questions-and-quandaries/legal-questions/can-i-use-song-lyrics-in-my-manuscript

          Reply
  37. nji philemon

    thank you for this post i found it very help full

    Reply
  38. Gavin Breed

    I’m an up-and-coming author. I want to start with something nonfiction that I know well, so I’ve settled on writing a book on game design. Am I allowed to reference specific video games and write sections of my book about them without needing permission? For instance, if I have a chapter that talks about fundamental similarities and differences between Super Mario Bros. and Mario 3, am I protected under fair use?

    Reply
  39. D Miller

    I just learned yesterday, through the once-a-year self-Google I did, that material I wrote as part of a grad school blog was quoted by a writer unknown to me in a BBC Future article. This brings up 2 issues: (1) I understood that the material written in that grad school course blog was not going to be open to the public (the article contains a link to the full text of my essay); (2) Upon googling the author, I learned that he is an extremely controversial right-winger who has been characterized as a “gay homophobe.” While the article is a general interest article and under other circumstances I might feel pleased that a few lines and phrases from my essay were used (though some were trivial such as “a vast amount of information” – regarding Facebook) in a published essay by a writer unknown to me, I am instead, rather unsettled by this incident. I don’t like the idea that someone can use material that I understood to be private, and I also don’t like the idea of being linked in print in any way to such controversial figure, even if his article, and his quotations of my material were not related to the areas of controversy for which he is by now, well-known. Help? Thoughts? What should I do about this if anything?

    Reply
  40. Anton

    Great article and wonderful discussion; many thanks.
    I, too, have a question:

    I am self-publishing a book of a series of my own drawings that deal with various aspects of cycling.

    I would like to intersperse quotes from various sources that pertain to cycling. Thus my drawings and the brief quotes would be interwoven.
    The quotes are short (one to three lines each; 30-50 words).
    The quotes are from sports-people/authors/celebrities/cyclists/public-figures/politicians as quoted/found in:
    – TV interviews
    – magazine/newspaper interviews
    – website interviews
    – their own twitter/instagram feeds
    – their own books
    Each quote would be fully cited and, where appropriate, linked.
    An example would be to use two lines of a 50 line interview with Lance Armstrong published in a newspaper.

    Would it be fair use to use these quotes in this manner?

    many thanks!

    Reply
    • Renee

      Best article I have read today, I really like how it is matter-of-fact presented! My situation is similar to Anton’s, except I have a sketch/doodle book of sorts with my own drawing and thoughts interspersed with quotes that fit well into the theme of the page (will be a self-published book). I always totally thought that short quotes were fair game. The compromise maybe 10% of the content. I welcome feedback for this scenario!

      Reply
      • Renee

        That would be “comprise” (not compromise!).

        Reply
    • MJ Sanderson

      This is similar to what i want to do with a book about personal finance. Did u ever get an answer to this?

      Reply
    • pavi

      Hi Anton,

      i have same question, i am working on book on fashion.Please tell me did you get answers.

      Reply
  41. Renee Shipp

    I am almost finished with a 30-day Christian Devotional. In it, I would love to use the lyrics of a half dozen Christian songs that speak to the message so perfectly. Must I get permission to use these lyrics and if so, from whom? For one of the songs, the Singer was easy enough to contact and he gave his permission, but just to be sure, he gave me the email address of one of the writers of the lyrics who was delighted to give his consent to my use of the lyrics and he plans to check with the other writer. This is my first book and I want to do it right. I have found the publishers of almost all of the songs. Should I contact them for permission? Thanks for any help you can give.

    Reply
    • Karina

      hi, so have you figured out what to do? cuz I’m in kind of similar situation and my book is like a collection of other lyrics

      Reply
  42. Earline

    I am interested in putting together a book about my favorite old television show, focusing mostly on the characters, not so much the actors personal lives. The show ended in the mid – sixties. If I use photos that I find through out the Internet or other media, am I going against copyrights. Should I play it safe and try to get photos from the studio in which the show was filmed?

    Reply
  43. Dinesh

    I am a teacher and i run a after school tutoring center and if I pick up some passages less than 1000 words each for comprehension exercise. I am charging students for these classes. Does this fall under fair use

    Reply
  44. Dan

    What about featuring trademarked logos in a commercial book that talks about logos and needs the logos to demonstrate the point? What should you do if a company complains and says you “need to get permission” or “get a license” because the logos are trademarked? Just not write about them?

    Reply
  45. Gary Wells

    I have written an autobiography, where i tell the truth about MY FEELINGS on someones actions. Is this allowed ?

    Reply

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