Copyright Issues: Fair Use

As an author or writer, there’s nothing more important in a digital age than protecting your work. Sadly most authors think they understand the basics of copyright law, but actually few have a good grasp of copyright law. Over the next couple of weeks, we’ll be sharing some cosmic truths about copyright law we’ve ferreted out of the system in our time publishing books. These articles will only cover copyright issues in the United States. It’s hard enough to keep up with these issues in the States, let alone the other countries in the world. Also, keep in mind that we’re not offering legal advice, and you should consult a licensed lawyer in your state regarding any intellectual property issues.

The last statement isn’t just something we threw in to legally cover ourselves. If you’re about to embark on any legal proceedings regarding a copyright, you’re going to need an intellectual property Matlock. This is because copyright law is a rather squirrely issue. There are very few actual legal devices that spell out what constitutes copyright infringement.

For example, United States copyright law allows for “fair use” of copyrighted materials. Most authors are vaguely familiar with the concept of fair use and most of us have seen Youtube videos of entire television programs or songs with the statement, “used under fair use.” While posters of copywritten material think there’s some sort of magical loophole in copyright law that says, “if there’s no financial gain to ripping off someone’s content, it’s fair use” or “if I post this material with a fair use statement they can’t touch me.” Nothing could be farther from the truth.

According to Attorney at law and the NOLO website’s Legal Editor, Rich Stim, fair use is:

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.

In dealing with the written word, fair use is a useful clause in copyright law that allows an author to include quotes from copyrighted material—if the use of that material is transformative in nature. That doesn’t mean that at the beginning of a book’s chapter you can slap a quote from a Guns N’ Roses’ song just because you think it’s cool. This proviso in copyright law is intended for those who are commenting or criticizing a copywritten work. So if you’re reviewing Avengers: Age of Ultron, describing a scene or using a quote from the movie’s dialog is something that could be considered as criticism and transformative. Basically, the public is gaining an additional reward in your commentary by outlining short pieces of the copywritten work. (Thanks again for the clarification Mr. Stim.) Posting the entirety of Avengers: Age of Ultron on Youtube with the description, “I liked it a lot and by the way I consider this fair use,” probably doesn’t meet the standard.

Here’s the rub with fair use and most anything associated with copyright law. United States copyright law doesn’t actually state how much material can be used under fair use and what a hard and fast definition of transformative is. Judges and juries decide what is fair use on a case by case basis. In an extreme example, Mr. Stim could sue us for using his two sentences in this blog post. A judge or jury will have to ascertain if we’re in violation of Mr. Stim’s copyright by using his material. (Here’s to hoping that Mr. Stim will see the use of his quote as us commenting on his work as transformative in enhancing author’s knowledge of the subject.)

The issue of fair use is so thorny that the United States Copyright Office only really comments on court decisions of fair use cases. The Copyright Office maintains an index of cases of this nature to assist lawyers and laypersons in understanding what the courts have interpreted as fair use. The point is; you can never truly be sure that using someone’s copywritten material will be considered fair use by the copyright holder and a court.

So what’s an author to do when you want to quote a short passage from a copywritten work? The best practice is to obtain permission by the copyright holder. While this process can be a pain, it does a couple of things for authors. First, if the copyright holder agrees to your use of his/her materials, you can’t be sued. Second, you can make connections with other authors by asking if you can use their work. Aside from potentially making a new friend, most authors are flattered that you think enough of their work to quote it. That quoted author, in turn, will probably mention your book to their friends or in a social media post. You get the benefit of doing the right thing and possibly helping your marketing efforts in the process.

In the next few weeks, we’ll delve a little deeper into some copyright issues as they pertain to authors. But here’s a good rule of thumb when dealing with fair use: if it belongs to someone else, ask if you can use it.