What’s So Fair About Fair Use?

This article was originally published at The Ruby-Slippered Sisterhood blog in 2012. It is being reprinted today with permission from the author, Amanda Brice, who is also known as attorney Heather A. Sapp, the Training & Communications Manager at LegalForce RAPC.

I often get questions from writers about their ability to use material in their writing that was obtained from other sources. Maybe you are writing a historical work and want to use other historical works as background. Perhaps your hero and heroine are slow dancing to a popular song, and you want to “show, not tell” by including the lyrics. Or maybe putting a snippet of your favorite poem in italics at the beginning of each chapter is just the effect you need. What if you are criticizing or comparing text written by someone else?

For works under copyright, the question of whether you can use portions of the work without being liable for infringement is covered by the doctrine of Fair Use. This doctrine originated in the “common law” (law made by judges) in the United Kingdom in 1740, from which U.S. judges drew to develop the U.S. version of fair use at least as early as 1841. It was not actually codified until Congress passed the 1976 Copyright Act.

The Fair Use clause of the Copyright Act says it is fair to use a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, without the consent of the copyright owner.”

Every fair use case is a question of facts. The test for fair use is very easy to state, but very difficult to apply, and the outcome is even more difficult to predict. Fair use is determined on a case-by-case basis, meaning that if you ask someone, “Would it be fair use to do _______?” the most likely answer you’ll receive is “It depends.” (Get used to that answer. You’ll be hearing it a lot.)

The reason you’ll hear this answer so often is that each scenario needs to be analyzed based on its specific facts and circumstances based on the following four factors:

1) the purpose and character of the use, including whether the use is of a commercial nature or for nonprofit educational purposes;

2) the nature and character 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 unauthorized use on the market for or value of the copyrighted work.

Courts weight these factors when faced with questions of copyright infringement (after the person whose material was taken without permission objects to that taking). But while these are the only factors specifically mentioned in the Fair Use clause, it doesn’t mean these are the only things at which the court can look. A court also may consider any other factor it deems relevant and place different weights on the four factors listed above.

While you do not need to engage in the detailed reasoning a court undertakes when deciding if you need to seek permission, you should be aware of the above factors and keep them in mind when using others’ materials in your own work. So what does this mean for your writing?

Purpose and Character of the Use

This factor looks at whether the new work was created for a commercial purpose or for a nonprofit/educational purpose. You’re here at the Rubies, so most likely your work will be created for a commercial purpose (we’re all career-minded here), and that characterization will tend to weigh towards a need to ask for permission.

The court also will look to whether your work is “transformative,” essentially taking elements from an existing work to create a new, creative work, and whether the work provides a social benefit to the public. Another element of this factor is your intent in taking the copyrighted work: Did you copy the existing work with the intent to exploit it and/or gain a commercial advantage, or is your copying incidental to the creation of your work?

Nature and Character of the Copyrighted Work

This factor reviews the work that you have copied. Was the copied work fact or fiction? Has it been published? Was the work created for a commercial or nonprofit use?
Generally speaking, if you have copied an unpublished fictional work, this factor will weight against fair use because you have eliminated the author’s ability to exploit her own work. In addition, it may be necessary to copy portions of a factual work, such as a news account, biography, or history in order to add your own material to the work, but it is usually not necessary to do so with a fictional work, published or unpublished.

Amount and Substantiality of the Portion Used

The concept of “fair” use is readily apparent in the evaluation of this factor, which looks at the amount and substantiality of the work you’ve copied in relation to the whole. Essentially, if you’ve copied only the necessary elements of a copyrighted work in order to create your new work, your copying may be viewed as fair use. On the other hand, if you copy the entirely of the work or the heart of a work (even if the heart of the work is captured in a small portion of the work in relation to the whole, it’s likely your act of copying won’t be considered fair use.

 Effect on the Market

The final fair use factor evaluates the effect your copying had on the market for and value of the copyrighted work. Does your copying harm the work you have taken material from? Will your newly crated work compete with the existing work, or does it fall into an entirely different market? These are the types of questions you should ask as you evaluate the effect your copying would have on the market.

 

As you can see, many of the fair use factors are closely related and dependent upon one another. The analysis, as well as how the court will weight each factor, or whether the court may look at other issues, depends very much on the facts and circumstances surrounding each instance of copying. (Remember that catch phrase I taught you at the beginning?)

In some situations, the importance of one factor may outweigh the other factors. Thus, as a general rule, you should not use any copyrighted material in your work without properly providing attribution, and you should use only what is absolutely necessary to create your work.

Let’s look at the question posed above about using song lyrics to show, not tell, in your writing. If you include the entirety of a song or the main refrain, you’ll definitely need to seek permission from the copyright holder. However, if you weave very short snippets of different song lyrics throughout the narrative (the key words here being “very short snippets”), with background information, you’re only using what is necessary of the copyrighted material to set the scene of your characters hearing a song. Also, if you select songs that include the title of a song in the lyrics, your readers will immediately recognize the song from just a few words. (It’s important to note here that you cannot copyright a title.)

No, I’m not going to give you a magic number for how many words is okay. This will always vary. (It depends, remember?) Now will I say that you can always do this or guarantee that the owner of the work you used will not try to assert his rights. But it is important to remember that copyright only protects expression, and if you’re using only a very few words, the portion that you’ve used may not even constitute protected expression. This is a case-by-case situation, and there is no one right answer.

If you have any doubts, you should always consult with an attorney and obtain permission from the copyright owner. Erring on the side of caution is never a bad thing.

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HEATHER A. SAPP, is the Senior Trademark Attorney at LegalForce RAPC. Prior to joining LegalForce, Heather was a Trademark Examining Attorney at the U.S. Patent & Trademark Office for more than a decade. Prior to joining the USPTO, she was a Legal Fellow for the House of Representatives IP Subcommittee. She is also a popular speaker on the writers’ conference circuit, speaking on intellectual property issues for authors under her Young Adult fiction pen name, Amanda Brice.