Q&A: Fair Use

Posted by Dan Steven on Nov 15, 2007

Q.  Can you tell me, once and for all, what exactly is “fair use?”

 A.  This is the single-most asked question of publishing lawyers.  Thanks to the wonderfully dense language of Congressional bill writing committees, and the courts’ interpretation of their efforts, it is difficult to answer.

Section 107 of the U.S. Copyright Act provides that “the fair use of a copyrighted work . … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Note that fair use is confined to these specific categories.  Section 107 nevertheless has been used to justify many instances of uses outside the categories, and generated numerous court cases.  (Adding to the confusion is the unfortunate belief of many writers that reproducing short excerpts of someone’s copyrighted work — without permission – automatically qualifies as fair use merely if attribution is given).

Section 107 further provides four “factors” to determine whether a specific use is to be considered a “fair use.” These factors are:

•           the purpose and character of the use, including whether such use is of 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

•           the effect of the use upon the potential market for or value of the copyrighted work.

Much clearer, right?  Of course not.  These factors, however, will determine whether your use of someone else’s material will be judged an infringement – or not.  For example, say you wish to use some Rolling Stones lyrics in your novel – perhaps a verse at the beginning of each chapter.  Let’s examine the factors:

1)      Is the purpose commercial or nonprofit?  Definitely commercial, and the commercial purpose is not in one of the specified categories (e.g. a review in a newspaper).

2)      The nature of the copyrighted work? Song lyrics, a prime example of a work designed to be protected.

3)      The amount and substantiality of the portion?  Depends on how much of each song you use.  Let’s say just one line – a small percentage.

4)      The effect of the use on the potential market? (most important).  Probably very little, since the lyrics have already been published and can be found all over the Internet (on commercial sites, no less).

The result?  The four factors are split.  Because the use does not squarely fit within any of the Section 107 categories, however, typically a court would find that, on the whole, the four factors weigh against a finding of fair use (and that is why your publisher will demand that you obtain permission for the lyrics).

The Internet, of course, has brought new confusion to the issue.  Abuse of the fair use exception abounds, but that won’t help you in the event you are sued.  Until the day when either Congress or the courts clear up this picture, play it safe – either don’t use even small portions of other persons’s work – or obtain permission.

© 2007 Daniel Steven