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Understanding Fair Use

by John Savage, Esq.

We have all seen the term "fair use" (or, in Commonwealth countries, "fair dealing"). Fair use is a significant issue when determining, for example, how much of a poem or song lyric we can quote in our stories or novels without running afoul of the Copyright Demons. This article is intended to introduce writers to the concepts of fair use, but it is no substitute for a lawyer.

As an editor and attorney, I get a lot of questions about fair use--and the flip side, permissions--from both authors and other staff members. I loaded those questions into the High-Optimizing Dejargonizing Analytic Blender, set for "United States Law Only" and "Writer's Perspective," and created the following puree. For simplicity, the term "quotation" includes direct quotations and thin adaptations and paraphrases.

1. What is "fair use"? Normally, a copyrightable work is completely protected by the copyright--that is, nobody else can trespass on the property. Think of an old estate, surrounded by a very high iron fence, patrolled by rabid pit bulls, and guarded by ogres whose vocabulary has not advanced beyond "No." Fair use is like a tranquilizer gun that allows you to stroll up the front walk onto the porch without getting bitten, because it allows you to make very limited use of the estate (copyrighted property) without being eaten as a trespasser (infringer). Keep in mind, though, that the dogs and ogres are still there. And they will bite if you don't pay attention, stick to the front walk and porch, and keep that dart gun loaded.

2. When does fair use apply? Fair use applies to any copyrighted property. This article concerns fair use of the verbal component of a property. There are significantly different rules for nonverbal properties, such as still frames from movies, songs as performed, photographs, and so on. This "verbal/nonverbal" framework is one of several common ways of describing the classes of copyright.

A couple of examples should make this clearer. The quotation "Here's looking at you, kid" (verbal) falls under different rules for fair use than will a clip or still frame from Casablanca (nonverbal). The quotation "Whatever gesture could be finer? / We've given Hong Kong back to China" (verbal) falls under different rules for fair use than will an MP3 or other sound extract from Fairport Convention's "Jewel in the Crown" (nonverbal).

3. What is the law on fair use? In the United States, the Copyright Act (Title 17 of the United States Code) controls fair use. Section 107 establishes a balancing test of four factors, usually referred to as purpose of use, nature of copyrighted (source) work, substantiality, and market effect. Because this is a balancing test, no one factor--however strongly that one factor favors one side or the other in the dispute--ever controls the result.

As a specific example, consider 2Live Crew's song "Pretty Woman." This song is a raunchy parody of the late Roy Orbison's "Oh Pretty Woman;" the copyright holder sued, claiming that the parody infringed (violated) its copyright. In Campbell v. Acuff-Rose Music, Inc., the Supreme Court held that, even though 2Live Crew's parody had an exclusively commercial purpose, the other three factors (see below) remained relevant in determining whether it was fair use. The Supreme Court sent the case back to the trial court, which had originally decided that the parody was a fair use.

4. What exactly does the Copyright Act say about fair use? You asked. It's in lawyerese, not English, so don't blame me for your headache:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

5. When does the purpose of a use allow fair use? Under the statute, any purpose can "allow" fair use. Commercial, for-profit uses are less likely to do so than are educational, non-profit uses. This is not a two-valued test, but a continuum. For example, a textbook has both for-profit and educational aspects to its use. For most fiction writers, your work will be considered commercial and for-profit, even if placed with nonpaying markets (or not placed at all). The critical test is the intent, not the fact, of profit.

Some book reviews, such as those in the New York Review of Books, quote extensively from the books under review. The review itself is usually commercial and for-profit. A publisher will almost always allow a review as fair use, because even negative publicity is considered good.

Parodies create another set of problems. Prior to Campbell, the publishing industry assumed that a commercial parody could never be fair use. The Smothers Brothers had some problems with this policy. On the other hand, Weird Al Yankovic always gets permission for his parodies. Justice Souter's opinion in Campbell really pushes consideration of parody into the fourth factor--market effect. As we'll see in question 8, this is the most important factor in determining whether a copyright holder really cares about a parody, or any other borderline fair use.

6. How does the nature of the source work concern fair use? The farther the source work (called the "copyrighted work" in the statute) is from the central concern of copyright law--protecting originality--the more likely that some copying will be fair use. Remember that copyright is in the expression, not in any underlying facts. Thus, copying portions of a creative work, such as fiction or poetry, is frowned upon, while copying the phone book is not (Feist Publications v. Rural Telephone Service Co.).

Sometimes, though, previously unpublished facts are so private that there is no fair use available. The best example involves President Ford's memoirs. In a less-than-clear opinion, the Supreme Court held that The Nation's publication of a few hundred words before the book's publication date was infringement, because the extract described "the most interesting and moving parts" of the book: Ford's decision to pardon Nixon. Later interpretations of this decision argue, in light of a significant trend toward greater protection of unpublished works, that the Court was swayed by the fact that Ford's memoirs had previously been unpublished. Once again, though, this is a continuum, not a "yes/no" decision.

7. What is "substantiality," and how does it concern fair use? This factor is very closely related to the nature of the source work. Copying 95% of a source work is almost certainly substantial reuse, and therefore not fair use. In some instances, though, copying even 1% of a work is substantial enough to run afoul of the law. The excerpts from Ford's memoirs were about 0.2% of the memoirs, but were the essence of the book's value. Therefore quotations of poetry should almost never include any line including the title or the last line of the poem. There are no hard rules for how much is "substantial," although many publishers have guidelines (see question 9 below).

8. What is "market effect," and how does it concern fair use? The fair use doctrine protects the market for the source work. A significant overlap in market between the source work and the new use weighs against fair use. Substantial differences in market weigh in favor of fair use. For example, the market for The Nation's excerpts from President Ford's memoirs was very similar to that for the memoirs themselves. On the other hand, the market for 2Live Crew's raunchy rap is quite different from the market for Roy Orbison's unthreatening 1960s pop.

The major music licensing agencies conveniently ignore this factor, asserting that one can never quote song lyrics without permission. It is fairly clear, though, that quoting or adapting a limited part of a song lyric in a piece of fiction cannot possibly harm the market for the song, even when the quotation or adaptation harshly criticizes the source lyric. I have not found any decision holding that quoting two lines or less (not containing the song's title or last line) was infringement instead of fair use.

Defending a copyright infringement suit can be expensive. However, if the accuser is too far out of bounds, you can force the accuser to pay your attorney's fees (Fogerty v. Fantasy, Inc.). The Copyright Act encourages such awards for frivolous complaints of infringement. This is all a question of how much risk you are willing to take. Sure, a steamroller might squash you if you jaywalk--but the chances of that happening aren't very high if you look both ways first.

9. How do publishers deal with fair use? All professional publishers have specific fair use policies, as should anyone who wants to avoid copyright infringement suits. The exact rules vary considerably from publisher to publisher. Fiction writers can expect the rules to have four elements:

  1. Proper attribution. There's no excuse for failing to attribute sources. Expect grumbling and either rejection or a very pointed editorial demand for a rewrite.

  2. The source. Some sources, such as government documents and works that have lapsed into the public domain, are always fair game (assuming proper attribution). Most quotations in fiction are from poetry, research sources, or other fiction.

  3. Amount quoted or adapted. As a soft rule of thumb, a fiction writer can quote about 300 words of prose or two lines of poetry (not including the title of the poem) in his or her story. That is a total for the entire story--breaking up a 1500-word quotation into 150-word headings at the beginning of each chapter will not help. Failure to adhere to this will also result in grumbling and rejection or a rewrite.

  4. Taking the essence. Ford's memoirs are one example of taking the essence. Quoting the last four lines of Frost's "Stopping by Woods on a Snowy Evening" is questionable, but less clear. While this might well stand up in court, a prudent publisher would not risk the costs of a lawsuit (and many publishing contracts these days require authors to assume the costs of that defense).

Once a publisher runs through these factors, the publisher--not the author--determines whether the quotation requires a permission. If the publisher wants a permission, guess who gets to pay for it? Permission fees run from the occasional gratis to several hundred dollars for major extracts, largely depending upon the source publisher's policy and the state of relations between the respective publishers.

Some publishers--or authors--refuse permission for all (or for unfavorable) adaptations. For example, 2Live Crew requested permission for its parody of "Oh Pretty Woman," which Acuff-Rose Music refused to grant. 2Live Crew still won in the face of refusal, because such a use was fair use (regardless of the refusal).

10. What does this mean to me ? Permissions are a pain in the behind--and the pocketbook. They can create significant ill will with a fiction publisher--they're routine in nonfiction--and significant delays in publication. Thus, we want to avoid them, by ensuring that our quotations and adaptations fall within fair use.

These guidelines should help you stay within the bounds of fair use:

  1. Always fully attribute anything you are quoting or adapting. Attribution will normally limit later disputes to a matter of permissions rather than a copyright infringement suit. That means no attorney's fees, a shorter process, and probably only a couple hundred dollars out of pocket.

  2. Limit direct quotations to two lines of poetry or 300 words of prose from any single source in any single piece of fiction.

  3. Be especially wary of quoting unpublished material. While the law says not to treat them differently (look at the last sentence of Section 107, quoted in question 4), judges usually resolve any doubts against fair use of unpublished works.

  4. Ensure that quotations and adaptations, however short, do not appropriate the essence of the source work so that someone who reads your work would be substantially less likely to buy the source work.

These guidelines are not intended as a blanket assertion that "You can do this and avoid all problems." They're conservative, but no set of guidelines on fair use could prevent all possible conflicts.

Keep in mind that fair use is very fact-specific. The recent amendments to the U.S. copyright law do not appear to have any effect on fair use. If you ever get involved in a dispute over fair use, consult a copyright lawyer. Don't assume that the publisher's legal department will help--you need counsel of your own.

References

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (the 2Live Crew case, quoting the lyrics at issue--another example of fair use).
http://www.law.cornell.edu/supct/html/92-1292.ZS.html

United States Copyright Code. 17 U.S.C. 101-801 (1998 as amended).
http://www.law.cornell.edu/uscode/text/17

Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) (a telephone book's alphabetical entries are not creative enough to earn copyright protection).
http://caselaw.lp.findlaw.com

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (in the court's discretion, it can award attorney's fees to the winner in any copyright infringement case).
http://www.law.cornell.edu/supct/html/92-1750.ZS.html

Harper and Row v. Nation Enterprises, 471 U.S. 539 (1985) (President Ford's memoirs).
http://caselaw.lp.findlaw.com

More Information:

Copyright and Fair Use
http://fairuse.stanford.edu/
Links to articles on issues of copyright, multimedia rights, and fair use.

The 'Fair Use' Rule: When Use of Copyrighted Material is Acceptable
http://www.nolo.com/legal-encyclopedia/fair-use-rule-copyright-material-30100.html

Giving Credit and Requesting Permission: Guidelines for Using Material Other than Your Own
http://oreilly.com/oreilly/author/permission/
A book chapter covering issues of copying, quoting, and obtaining permission for use of other authors' materials.
Copyright © 1999 John Savage
This article was originally published in Speculations, Issue 27 (June 1999).

This article may not be reprinted without the author's written permission.


John Savage is a former copyright lawyer.

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