Now we come to the blog post I least wanted to write because I like to be able to at least take a stab at giving clear answers to author’s questions, and there are very few clear answers in American fair use law. Not many lawyers, or even law professors like me, can tell you upfront exactly when a particular use of someone else’s work (lines of a song or poem etc.) will be a copyright infringement or a fair use.
That’s because American copyright law likes to keep its fair use defense flexible so courts can adapt it to new situations, new technologies, and new ways of developing and distributing creative work. In other words, and I’ve said it before, the uncertainty in fair use defense is a feature, not a bug.
Many other countries have a “fair dealing” defense, rather than fair use, and typically have clearer guidelines about when a particular use of someone else’s work will be allowed.
So, let’s talk about fair use …
Most writers and artists know that if you copy someone else’s work without permission, you may have engaged in copyright infringement and the consequences can be significant if they sue you. Of course, it usually doesn’t come to that.
While some copyright owners are more proprietal (for want of a better word) than others, many don’t mind if you use their work. It’s always a question of the context and the people involved. Some copyright holders will ask you to give them credit for any of their work you use, but not pay royalties. However, giving someone credit when you use their work is not an automatic protection against copyright infringement. Copyright law is only about copying, not about attribution. If you want to know more about why see my previous blog post on copyright basics.
If you publish with a traditional publisher, your publisher will typically require you to get copyright permission for any copying of anyone else’s work, even if it’s only a quote from a poem, song or book in a chapter epigraph. A traditional publisher will also probably include in your contract that you promise to indemnify them if they’re ever sued for copyright infringement or anything else. Thus, even where you could potentially claim fair use, a traditional publisher will typically sidestep the issue altogether by requiring you to get permission.
On the other hand, if you’re self-publishing, you’ll have to make decisions about fair use yourself. You may want to do this in consultation with a copyright attorney or volunteer lawyers for the arts organization. You may choose to obtain permission for snippets you take from other’s work, or you may decide that you’ll take the risk of someone complaining you’ve infringed their copyright and simply deal with the situation if it arises. If someone complains about copyright infringement after you publish, you can always ask for permission at that point and offer to pay royalties, or you can claim fair use and hope they don’t take it any further.
The problem with the uncertainty about fair use is that neither you nor the copyright owner will necessarily know whether your use is actually a fair use or not unless the copyright owner takes you to court and the court decides whether or not it’s a fair use. There’s really no way of knowing for sure upfront whether any given use is a fair use or not and, as most of these situations don’t end up in court, everyone (even your attorney if you have one) is usually operating on their best guesses based on past situations.
The fair use guidelines that courts use are set out in the copyright act (and are often referred to as the “fair use factors”). They relate to things like: whether you are using someone else’s work in a commercial context; whether you’re using their work in a way that’s “transformative” in the sense of adding new insights and perspectives; how much of their work you have used; whether their work was highly artistic or more academic/informational; and, the extent to which your use may have negatively affected the value of their work or an actual or potential market for their work. While this all sounds legalese (and it is), much of it is common sense when you think about it, and I’m always impressed by the innate awareness authors and other creative artists have about these issues. If you’re taking large amounts of another person’s work for your own commercial ends, your use is less likely to be a fair use. That really is common sense.
The more difficult questions arise in relation to, say, selling fanfiction commercially without permission. Where fanfiction is noncommercial, it’s less likely to be a copyright infringement. That’s not to say noncommercial fanfiction could never be a copyright infringement, just that it’s less likely (and maybe less likely that the original author would have a problem with it).
A good rule of thumb
A good rule of thumb is obviously never to copy snippets of another’s work unless you’re prepared to ask for permission and maybe pay royalties to the copyright owner. If you’re working with a traditional publisher, your publisher may require you to do just that. However, if you’re an indie or a hybrid author, you have to make these determinations on your own. There are usually ways around copying e.g. referring to a song without quoting the lyrics, so that can be your fallback position if you’re seriously concerned about copyright infringement. And if you can find an attorney or volunteer lawyer for the arts and ask for advice, that can be a useful option as well. Just remember that fair use always carries some uncertainty and even formal legal advice won’t necessarily shield you from a copyright infringement action down the track, although it will give you useful guidance.
NOTE: The usual disclaimers apply to this blog post. Nothing written here is intended as legal advice. If you need formal advice, you should consult an attorney or other expert.
Are you interested in learning more about this and other legal issues for authors? Join Jacqui for her webinar: Legal Issues for Authors with Jacqueline Lipton October 26 at 9 PM EST.
Jacqui Lipton is a law professor and the director of Authography LLC, a company dedicated to helping authors and artists with legal and business issues. She writes fiction and law books, and holds an MFA in fiction writing from Vermont College of Fine Arts as well as a Ph.D. in law from Cambridge University. She loves reading and writing and is the mother of three children and (apparently) three cats.
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