Note from Jane: This guest post is by attorney Bradlee Frazer has been updated to address reader questions and offer more information about fair use. Be sure to read his previous posts:
You might also want to reference my post: When Do You Need to Secure Permissions?
Authors create copyrights when they express their ideas into or onto a tangible medium. This means the author has the right to make copies of the work; the right to create derivative works; the right to distribute copies of the work; the right to publicly perform the work; the right to display the work; and, in the case of sound recordings, the right to perform the work by means of a digital audio transmission.
If you are the sole owner of the copyright to a work, you are the only one who may lawfully do these things or sell/license the rights to someone else to do these things. Conversely, doing one or more of these things without the copyright owner’s permission is called copyright infringement.
One defense against copyright infringement is fair use. Fair use allows you to use someone’s copyrighted work without permission. However, invoking fair use is not a straightforward matter.
The fair use doctrine is defined here. To bring your otherwise unauthorized use within the protection of the doctrine, there are two separate and important considerations. First, your use must be for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
This is the first prong. If your use falls into one of these categories, then you move to the second prong of the test. A court will consider the following four factors to determine if your use is a fair use:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (emphasis added)
- the effect of the use upon the potential market for or value of the copyrighted work.
If your use falls into one of the enumerated categories AND you are able to prevail factually on at least two of the four second-prong factors, you might succeed in proving that your use is fair and thus not copyright infringement.
Here’s an example.
Let’s say you are writing a novel for commercial publication and you wish to reproduce the lyrics to the song “Little Red Corvette” by Prince in the book. You are not reproducing the sheet music, and you are not including a sound recording of the song with the book. You are merely causing the literal words of the lyric to appear as prose within your book. Here is the analysis:
- Do you own the copyright to the work? No. The author and copyright claimant of these song lyrics are Prince Rogers Nelson (Prince’s real name).
- Do you have Prince’s permission? No.
- Is your use for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”? No. You are writing a novel.
- Is the purpose and character of the use commercial or noncommercial? Commercial.
- What is the nature of the underlying work you are reproducing? Is it highly creative and subject to strong copyright protection, or is it less creative or perhaps even not subject to copyright protection at all? This is a highly creative work that is entitled to strong copyright protection.
- Did you use the whole lyric or just a few words? You used the whole lyric.
- Will your use of the lyric cause Prince to lose money, e.g., people will not download the song on iTunes anymore? No, your use will likely not cause Prince to lose money.
Of all the fair use factors, you would only perhaps win on one of them, the last one, so if Prince sued you, you would likely not be able to successfully invoke the fair use defense. Other defenses may be available, but probably not fair use.
In each case where you wish to use someone else’s work, and wish to invoke the fair use defense, you should ask those seven questions.
Not all situations call for invocation of the fair use defense. For example, if you only want to use the title of another work, that’s not copyright infringement because titles and short phrases (fewer than ten words or so) are not subject to copyright protection. Similarly, facts are not protected by copyright, and you may use plain, unadorned, uncreative lists of facts without copyright infringement liability. If someone had, for example, prepared an alphabetical list of the fifty states, that list of facts (state names) is not protected under copyright law.
What about using quotations—is it okay?
A question like “is it OK” is hard for a lawyer to answer because in truth, the only way to know for sure if something is “OK” is by getting sued and then winning that lawsuit. Then, the judge has told you, in essence, “Yes, your behavior is OK.”
A better way to ask the question is: “If I get sued for quoting another book without seeking permission, what defenses may I posit in the lawsuit to increase the chances I will not lose?”
Answering that question is possible, and the answer is that if you copy ten or fewer words from another book you may likely be able to defend yourself under the doctrine that titles and short phrases are not subject to copyright protection. If you use more than 10 or 15 words, then you should ask those 7 questions above to determine how and if you might be able to invoke fair use as a defense if you get sued for copyright infringement. This is why I tell clients to always seek permission, and to remember that attribution alone is not permission.
The big question: How risk averse are you?
Anytime you use any third-party content without permission (including quotes), you run the risk of getting sued. No amount of opining by me or another lawyer can change that fact. No one has to get permission from a judge or lawyer to sue you when you use their “stuff.”
Remember, under U.S. law:
- Fair use is just and only a defense you assert after you’ve been sued.
- Public domain is just and only a defense you use after you’ve been sued.
- An argument that the work you copied is not copyrightable subject matter because its total length is too short to merit copyright protection (10-15 total words or less) is just and only a defense you use after you’ve been sued.
The arguments about the length of the quotes all fall within the realm of one of more of these defenses, but that’s all they are—defenses you use after you’ve been sued.
So, again, to my point: how risk averse are you? If you are very risk averse, you should seek and obtain permission or not use the quotes since you have no control over if they will sue you. Yes, you may have one or more defenses in that lawsuit, but do you want to get sued at all?
If you are very risk tolerant, you may wish to use the quotes hoping they will never catch you and never sue you, and if they do sue, you trust that you can assert one or more of these defenses.
Also remember that attribution is not permission and does not create a defense. Also remember that celebrities (even dead ones) can sue you for something called “a right of publicity violation” in addition to suing you for copyright infringement.
Not saying you can’t. Also not saying you can. No one knows if you can until you get sued—and win.
Can I quote a famous person if they’ve said something publicly?
Remember the definition of copyright. Answering this question turns on whether someone owns a copyright in the spoken words, i.e., have the words been reduced to a tangible medium by someone? The fact that they’ve spoken the words publicly has no bearing on the analysis. Factors to keep in mind:
- If the quote is very old, say, more than 100 years old, even if it is in a tangible medium, it is likely that the copyright in that work has expired and that the quote has now entered the public domain.
- If you’re using the quote as a means to sell your book, you could get sued for a right of publicity violation. (However, it is typically defensible to use someone else’s name or likeness for news, information, and public-interest purposes, but that doesn’t always rule out a violation.) Right of publicity laws vary in each of the fifty states (and publishing something online is like publishing in all states), so you have to be careful.
The right of publicity can apply to people who are dead—it varies from state to state. In general, the right of publicity survives the person’s death, in some states for as long as 75 years after they die. Some states may even be longer!
What if I’m quoting or referencing facts?
Plain, unadorned facts are not copyrightable subject matter. For example, if Sue writes down a list of the fifty U.S. states and places that list in her book, I may copy that list exactly from her book and my defense, if she sued me, would be that such a list is an unadorned list of facts and thus are not subject to copyright protection. If, however, Sally, made the list creative and made a photo collage out of it or something, copying the collage might be copyright infringement, but the underlying facts themselves are still not protected by copyright.
What about quoting, paraphrasing, or linking to online work?
There are three issues here: quoting, paraphrasing, and linking, but there is nothing fundamentally different about online works that changes the analysis. Some human being wrote the words that appear online, and that human being (or her employer or her assignee) owns a copyright in the work. If someone copies and reproduces most or all of those words somewhere else online (a) without permission; (b) without being able to invoke the Fair Use Defense; (c) without being able to argue that the original words were not copyrightable subject matter; or (d) without invoking some other defense, then that is copyright infringement.
For example, the Huffington Post can argue that it is a news outlet, and news outlets get greater latitude to argue the Fair Use Defense. Also, you can summarize another’s works without committing copyright infringement if you do not literally replicate the exact words and all you do is convey the same underlying ideas.
Lastly, in most cases you may link to another’s work, as long as you do not literally copy and reproduce all or most of the actual words at the linked story on your site.
What about recipes from cookbooks?
To the extent the recipe is just a list of facts (amounts and ingredients), it is not subject to copyright protection. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable.
What about using quotes from TV, film, or advertisements?
Television, film, and advertisements are all copyrightable subject matter, and copying from them without permission is subject to the same analysis.
Please comment or e-mail me at firstname.lastname@example.org if you have any questions.
Brad Frazer is a partner at Boise, Idaho law firm Hawley Troxell where he practices internet and intellectual property law. He is a published novelist (http://www.diversionbooks.com/books/the-cure/) and a frequent speaker and writer on legal matters of interest to content creators. He may be reached at email@example.com.