A Writer's Guide to Copyright Fair Use

Fair Use Uses a Four Part Balancing Test

Fair use allows authors and other creators to make reasonable use of copyrighted material without paying a fee. It functions as a free expression safety valve by allowing authors to make statements about important societal issues. Without it, copyright owners could squash criticism, commentary, news reporting, scholarship, and even research they didn't like or approve of.

Understanding Fair Use

Fair use is a defense against copyright infringement. Courts favor uses that challenge, interpret, build upon, tease, or poke fun at the original work, resulting in new insights and meaning. Such uses are known as transformative uses. Examples of transformative uses include editorials, criticism, scholarship, news reporting, teaching, and parody. The more transformative the use, the greater the likelihood the use will fit under the aegis of fair use. In addition, courts favor uses that are primarily educational or noncommercial.  Uses that displace sales or licensing opportunities for the owner of a work seldom qualify.

The Four Fair Use Factors

Using a four-factor fairness test, courts weigh the exclusive rights of copyright owners against the societal interest in the free flow of information. No one of the following factors is determinant, although factor four, which relates to economic harm to the copyright owner, weighs heavily in any fair use decision.

1.     The purposes and character of the use, including whether the use is primarily commercial. This factor also weigh the transformative nature of the use; 

2.     The nature of the work that's been copied;

3.     The amount and importance of what's quoted in relation to the original work;

4.     The effect the copying has on the market for the original work and its derivatives 

"Courts are solicitous of commercial publishers' free speech rights.  Therefore, the fact that a publication is sold does not strip it of fair use protection. Fair use determinations are based on the totality of the factors. No one factor is controlling."

Useful Fair Use Tips and Strategies

Despite the ad hoc nature of reported fair use decisions, here are general guidelines to help you ascertain if you have a viable fair use defense. 

• Fair use favors transformative uses. Are you using the work as a springboard to make new insights? Do you critique the original? Have you made a connection between the work you've copied and other works? Are you using the work to buttress your arguments or the arguments of others?
• Is the use a commercial use? While relevant, a commercial use is not dispositive. If the use can provide some social benefit, "by shedding light on a earlier work, and in the process creating a new one," the use may still be a fair use. 
•  In Andy Warhol Foundation v. Goldsmith (2023), the U.S. Supreme Court held that the claim to fairness diminishes, "where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it."
• Since ideas are common property, fair use is more likely to be found using factual material.  
• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so fair use tilts against the use of these works.
• Quoting from an unpublished work will expose you to greater risk than quoting previously published materials.
• The use must be reasonable in light of the purpose of the copying. The less you copy, the more likely fair use will be found. However, sometimes even a small (but important) portion borrowed from a work may qualify as an infringement.
• Synthesize facts in your own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively.
• Lack of credit, or improper credit, weighs against finding fair use. However, giving credit will not transform an infringing use into a fair use.
• A parody (lawful), as opposed to satire (unlawful) is a work that ridicules or mocks another work. Fair use looks favorably upon parody. Make sure the parody is apparent and conjure up just enough of the original to convey your parodic points. 
• While fair use favors non-profit activities, being a not-for-profit will not automatically shield you from liability if your actions reduce the monetary incentives for creating future works. 

To sum up, don't compete with the work you copied. If the use displaces or diminishes the market for the original work, including potential licensing revenue, likely it's not a fair use. Generally, the more transformative the work is, the less the economic impact is.

Does Your LLC Protect You from Personal Liability for Infringement?

No, it does not. If you personally direct the infringement, your personal LLC or corporation will not shield you from personal liability for claims of either copyright or trademark infringement.  Under the theory of vicarious liability, infringement may arise if the managing member or corporate officer has the right and ability to supervise the infringement and a direct financial interest. Further, if you have knowledge of the infringement, and materially contribute to the infringing conduct of another or encourage or assist in the infringement, you may be liable for contributory infringement. 

 

Conclusion
 

Reminder. Fair use is a defense to copyright infringement. Unfortunately, fairness, like beauty, can be debated but not defined. If you are uncomfortable with the case-by-case nature of fair use determinations, consult with a copyright attorney. They can help you walk the sometimes tricky line between fair and foul use. By hiring an attorney, and following their advice, your good faith effort to ensure fair use applies, may have a positive impact on the measure of damages if a court rejects your fair use defense. Finally, your attorney can advise you on how to protect yourself against claims of infringement (and other media perils) with publisher's liability insurance. 

Resources

A Guide to Trademark Fair Use & Title Clearance

Trademark Registration and the Single Book Title

  

Image: Tight-Rope Walker, c.1885 (oil on canvas)

About the Artist:  Jean Louis Forain  (1852 - 1931)

 

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give specific legal advice about specific circumstances. Professional legal advice should be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based copyright, publishing, and entertainment attorney. He is co-author of the Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors, and Publishers (John Wiley & Sons, Inc.). In addition, Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries and lectures frequently on contract and copyright issues affecting creators and their publisher partners. A long-time supporter of independent presses, he was First Amendment counsel to the Independent Book Publishers Association  (IBPA) and is a member of The Beacon Press advisory board.  

You may reach attorney Jassin at jassin@copylaw.org or at (212) 354-4442. His offices are in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036. Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin

 

What to Consider When Considering Fair Use

Fair use allows limited copying of in-copyright material without permission for socially productive purposes such as commentary, criticism, news reporting and parody.  However, these uses are not automatically deemed fair uses. Only a court can determine with authority whether a particular use is a fair use. 

The fair use doctrine acknowledges that copyright is essential in theory, but may be pernicious in practice. Using a fairness test, courts balance the rivalrous property interests of copyright owners against the societal interest in permission-free access. 

Fair use is a defense to copyright infringement.  So, think defensively.  As a general rule, transformative uses, or uses that challenge, construe, tease, or poke fun at the original, resulting in new insights and meaning, are favored by courts.  

To determine whether a use is a fair use, courts consider the below four factors.  No one factor is determinative, although factor four, which relates to economic harm to the copyright owner, weighs heavily in any fair use decision. 

1. The purposes and character of the use, including whether the use is primarily commercial; 
2. The nature of the work that's been copied;
3. The amount and importance of what was taken in relation to the original work as a whole;
4. The effect the copying has on the marketability of the original work and its derivatives

What to Consider When Considering Fair Use

While there are no mechanical rules to define with precision what is a fair use, the following criterion, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.       

• Fair use favors transformative uses.   Use the work as a springboard for new insights.   Critique the original.  Make a connection between it and other works.  Use it to buttress your own arguments, or the arguments of others.  
• Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one.  That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music. 
• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works. 
• Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use. 
• Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement.  Make sure the amount you use is reasonable in light of the purpose of the copying.  
• Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively.
• Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.
• Parody is a work that that ridicules or mocks another work.  Fair use favors parody.  It does not favor satire.  Make certain the parody is apparent.  A conservative approach is to conjure up just enough of the original to convey your parodic points. 
• Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  
• The most important consideration concerns economic harm.  Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.

To paraphrase the Chicago Manual of Style, fair use is a use that is fair, so be bold, but also heed the Copyright Office's warning: "[T]he endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules."

Trademark Fair Use

Like copyright law, claims of trademark protection can overreach the bounds of justifiable legal rights. Fortunately, the First Amendment states that there shall be “no law” restricting freedom of the speech or the press. The trademark fair use doctrine allows the use of a trademark when it is used in a way not to deceive the public. For example, it is a fair use to use a trademark  in the title of a literary work if done in good faith to convey a message about what the work is about, provided you don’t suggest that the work is approved or endorsed by the trademark holder. 

Fairness, like beauty, can be debated, but not easily defined.  If you are uncomfortable being unsure, err on the side of caution and seek permission, or consult with a copyright or trademark attorney.    


Section 107 of the U.S. Copyright Act

Additional Resources:
Trademark Registration and the Single Book Title

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).  Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he was First Amendment counsel to the Independent Book Publishers Association  (IBPA) and is a member of the The Beacon Press advisory board. 

He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin

Author's Guide to Copyright Clearances and Permissions

You hate clearing permissions.   After all, they are time consuming and expensive.  However, some types of use don't require permission.  If you answer yes to any of the following questions, you may not need permission.   

(i)  Is the material is in the "public domain" (i.e. out of copyright)?

(ii)  Is the material is uncopyrightable (e.g., unadorned ideas are common property)?

(iii) Is the work subject to a "Creative Commons" license?

(iv) Is the use a fair use?

This checklist is explained in greater detail below.  

Of course, if you are unsure whether a work is protected by copyright, or other intellectual property laws, seek legal advice or obtain permission. 

If you plan to make use of a work that does not fall within these four safe havens, then you must obtain a license or permission from the owner of the work. Begin the process early. Locating rights holders is not always easy, and negotiating rights and permissions takes time. 

Public Domain (Expired & Forfeited Copyrights)

 

Copyright protection does not last forever. That is why copyright is often called a "limited monopoly.” When copyrights grow old and die, the work they protected falls into the public domain. 

Duration depends upon a number of factors, including, the date of publication, and the date of the author's death.  Literary and artistic works published before 1923 are out of copyright in the United States, and can be used (subject to the below provisos) without permission.    

 

For works created after December 31, 1977, the duration of copyright is 70 years after the author's death.  For works for hire created after December 31, 1977, the duration of copyright is 95 years after publication. 

For works published between 1923 and 1977 the term of copyright is 95 years from initial publication.   However, special rules apply to works created or published before 1978.  Before 1964, copyright owners were required to renew their copyrights during the 28th year of copyright.  If the owner failed to renew, their copyright was forfeited.  A tremendous number of works entered the public domain because renewal was not made during the 28th year.  The renewal scenario requires a further qualification.  If the public domain work you wish to use is based on a work that is still in copyright, you can't use that work without the permission of the underlying rights owner.  For example, while the owners of the motion picture "Rear Window" forfeited copyright by failing to renew during the 28th year, the owner of the underlying work, a short story by Cornell Woolrich, renewed the copyright of the short story.  Since the copyright in the film only extended to the new material added by the producer of the film, the owner of the copyright in the short story was able to stop unauthorized distribution of the film.   Similarly, failure to adhere to the notice requirements could toss a work into the public domain.  Before 1988, publication without a proper copyright notice could also invalidate the copyright.

Subject to certain exceptions, public domain works may be freely copied and used in the creation of new works without permission, or authorization, of the former copyright owners. 

Public Domain Traps & Pitfalls

Copyright is not the only form of legal protection for creative works. Although a work may be in the public domain for copyright purposes, rights to the material may be protected under other legal theories such as: trademark or unfair competition laws (which protect against confusingly similar usage by another); the right of privacy (a person's right to be left alone); the right of publicity (an individual’s exclusive right to benefit commercially from his or her name, voice, photograph or likeness). Similarly, works such as databases may be protected under trade secret or contract law in the U.S. and abroad.  Further, new or later versions of a work, to the extent the underlying public domain has been embellished with new material, may also require permission. 

 

The following is, perhaps, the most insidious trap of all. Although a work may be in the public domain in the United States, it may still be protected in other countries. For example a work by a United States author that is in the public domain in the United States for failure to renew, may still be protected in countries such as Germany; where copyright formalities are abhorred, and duration is based on when the author died, not a specific term of years. If you plan to publish a public domain work abroad, you may be required to obtain permission if the author died within the last 70 years. If you fail to obtain permission, you will expose yourself to the risk of one or more lawsuits overseas. 

Uncopyrightable Material

There are certain types of works that are immune from copyright protection altogether.  Copyright does not protect unadorned or fundamental ideas, concepts, procedures, recipes, principles or discoveries. The same principle applies to  facts.  As a general rule, copyright does not protect short phrases, names or titles.  You can, however, trademark certain short phrases, names and series titles, provided, the mark is not already used for similar goods or services.  Copyright does protect the way ideas, concepts, procedures, principles and discoveries are described, explained or illustrated; it only protects the unique way in which they are expressed.  As is to be expected, the dividing line between an unadorned or unprotectable idea, concept, principle or theory, and one that is sufficiently developed to enjoy copyright protection, is often murky.      

Creative Commons

 

Some people and organizations use Creative Commons licenses to make their works available for free to the public. The license appears in close proximity to the work. With a Creative Commons license, the author or creator chooses a set of conditions they wish to apply to their work. If you violate the terms of the license, the potential consequences include compensatory or statutory damages, or an injunction.  So, read the Creative Commons license carefully!
Fair Use

Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission.   The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster."  Against this backdrop, fair use can be looked at as a balancing act.  It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators.  

While invaluable to scholars, the media and business people, it should be noted that fair use is not a right but a defense to copyright infringement.   The central point is that fair use determinations involve risk.  So, if you can't make the decision yourself, and are risk adverse, seek permission.       

To determine whether the use made of a work in a particular instance is a fair use, courts consider the below four factors.  No one factor is determinative, although factor four, which relates to economic harm, weighs heavily in any fair use decision. 

1. The purposes and character of the use, including whether the use is primarily commercial; 
2. The nature of the work that's been copied;
3. The amount and importance of what was taken in relation to the original work as a whole;
4. The effect the copying has on the marketability of the original work and its derivatives

Top 10 Considerations When Evaluating Fair Use 

While there are no mechanical rules to define with precision what is a fair use, the following criterion, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.       

• Fair use favors transformative uses.   Use the work as a springboard for new insights.   Critique the original.  Make a connection between it and other works.  Use it to buttress your own arguments, or the arguments of others.  
• Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one.  That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music. 
• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works. 
• Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use. 
• Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement.  Make sure the amount you use is reasonable in light of the purpose of the copying.  
• Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively.
• Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.
• Parody is a work that that ridicules or mocks another work.  Fair use favors parody.  It does not favor satire.  Make certain the parody is apparent.  A conservative approach is to conjure up just enough of the original to convey your parodic points. 
• Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  
• The most important consideration concerns economic harm.  Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.

To paraphrase the Chicago Manual of Style, fair use is a use that is fair, so be bold, but also heed the Copyright Office's warning: "[T]he endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules."
Fairness, like beauty, can be debated, but not easily defined.  If you are unsure, or, if permission is denied and you feel the material is important to your work, consult a copyright attorney.   


Additional Resources:

Copyright Office - Search Fair Use Opinions
Classroom Use Guidelines (not legal authority; but agreed-upon minimums)
Creative Commons

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).   Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association  (IBPA) and sits on the advisory board of The Beacon Press, one of America's oldest independent presses. 

He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin










 

When Can I Legally Use, Repurpose and Publish Without Permission?

Clearing rights and permissions can be costly. Fortunately, the U.S. Copyright Act places exceptions and limitations on a copyright owner's right to demand a permission fee. Those exceptions and limitations are:  

• You can build on and share works in the public domain
  
• Unembellished ideas, concepts, principles and discoveries are not protected by copyright law. 
• The use qualifies as a fair use.
  
• When the owner has waived their interest in the work.

Below is more information about these important copyright exceptions and limitations. If after reading this you are still unsure whether permission is required, seek permission or the advice of counsel.

1.  The Public Domain (Expired & Lapsed Copyrights)

 

On January 1, 2022, works from 1926 fell into the public domain in the United States.  On January 1, 2023 copyrighted works from 1927 will enter the public domain, and so on. How long copyright protection lasts depends upon a number of factors, including, the date of publication, the date of the author's death, and in which countries you intend to publish the work.

Post 1977 Works.  For works created after December 31, 1977, the copyright last for 70 years after the author's death.  If a joint work, the term lasts for 70 years after the last surviving author’s death. For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter.

Pre-1977 Works.  Before 1978 copyright lasted for 95 years from either registration or initial publication. However, many works fell into the public domain prior to 95 years due to failure to renew. Before 1964, copyright owners were required to renew their copyrights during the 28th year of copyright. If the owner failed to renew, their copyright was forfeited. 

The Copyright Renewal Trap.  If the public domain work you wish to use is based on a work that is still in copyright, you can't use that work without the permission of the underlying rights owner. For example, while the owners of the motion picture "Rear Window" forfeited copyright by failing to renew their copyright, the owner of the underlying work, a short story by Cornell Woolrich, did renew their copyright. Since the copyright in the film only extended to the new material added by the producers of the film, the owner of the copyright in the underlying short story was able to stop unauthorized distribution of the film. The takeaway? If a work is an adaption of another work, both the underlying rights holder, and the holder of the copyright in the derivative work may hold rights. 

Other Forms of Protection.  Copyright is not the only form of legal protection for creative works. Although a work may be in the public domain for copyright purposes, rights to the material may be protected under other legal theories such as trademark or unfair competition law (which protects against confusingly similar usage by another); the right of privacy (which protects a person's right to be left alone); the right of publicity (which protects an individual’s exclusive right to benefit commercially from his or her name, voice, photograph or likeness). Similarly, works such as databases may be protected under trade secret or contract law in the U.S. and abroad. Further, new or later versions of a work, to the extent the underlying public domain has been embellished with new copyrightable material, may also require permission. 

Protection Abroad for U.S. Public Domain Works. Although a work may be in the public domain in the US, it may still be protected in other countries. For example a work by a US author that is in the public domain in the United States for failure to renew, may still be protected in countries such as Germany, where copyright formalities are abhorred, and duration is based on when the author died, not a specific term of years. If you plan to publish a public domain work abroad, you may be required to obtain permission if the author died within the last 70 years. If you fail to obtain permission, you will expose yourself to the risk of one or more lawsuits overseas.

2. Uncopyrightable Material

There are certain types of works that are immune from copyright protection altogether. Copyright does not protect unadorned or fundamental ideas, concepts, procedures, recipes, principles or discoveries. The same principle applies to facts. Copyright, however, does protect the way ideas, concepts, procedures, principles and discoveries are expressed, explained or illustrated. Be aware that where the dividing line between an unadorned or unprotectable idea lies, and one that is sufficiently developed to enjoy copyright protection, sometimes is hard to discern. As a general rule, copyright does not protect short phrases, names or titles either. However, short phrases, names and titles may be protected by trademark or unfair competition law if they serve a branding purpose. Fortunately, the use of a trademark as a point of reference in a story, or used in a non-deceptive way to criticize a product or service, will generally be deemed a fair or non-infringing use.

3. Fair Use

Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission. The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster." Against this backdrop, fair use can be looked at as a balancing act. It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators. 

While invaluable to scholars, the media and business people, it should be noted that fair use is not a right but a defense to copyright infringement. The central point is that fair use determinations involve risk. So, if you can't make the decision yourself, and are risk adverse, seek permission.

To determine whether the use made of a work in a particular instance is a fair use, courts consider the below four factors. No one factor is determinative of the issue, although factor four, which relates to economic harm, weighs heavily in any fair use decision.  

• The purposes and character of the use, including whether the use is primarily commercial;
• The nature of the work that's been copied;
• The amount and importance of what was taken in relation to the original work as a whole;
• The effect the copying has on the marketability of the original work and its derivatives

Cutting Through the Fair Use Gobbledygook 

While there are no mechanical rules to define with precision what is a fair use, the following considerations, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.        

• Fair use favors transformative uses. Use the work as a springboard for new insights. Critique the original. Make a connection between it and other works. Use it to buttress your own arguments, or the arguments of others.

• Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one. That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music.

• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works.  

• Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use.  

• Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement. Make sure the amount you use is reasonable in light of the purpose of the copying.

• Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively. 

• Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.

• Parody is a work that that ridicules or mocks another work. Fair use favors parody. It does not favor satire. Make certain the parody is apparent. A conservative approach is to conjure up just enough of the original to convey your parodic points.  

• Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  

• The most important consideration concerns economic harm. Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.  

4. Creative Commons
 

Creative Commons Buttons

  Creative Commons licenses are standardized licenses give the public permission to share and use a creative work on conditions set by the copyright owner. While neither an exception nor limitation on copyright, by clearly stating what is, and is not, a permissible use, CC licenses short circuits the need to seek formal permission. A CC license button (or link to the license) will appear in close proximity to the work. If you violate the terms of a CC license, in addition to termination of the license, the potential consequences include compensatory or statutory damages, or an injunction. Therefore, you must read a CC license very carefully.

If you plan to make use of a work that does not fall within the above four safe havens, then you must obtain a license or permission from the owner of the work. Begin the process early. Locating rights holders is not always easy, and negotiating rights and permissions takes time.

Finally, don't be afraid to negotiate rates with the rights holder, keeping in mind that non-profit organizations often receive more favorable permission quotes.   Also, if the amount you want to use is small, or the use will promote the rights holder, or contribute to the public good in a significant way, fees may be reduced or waived.  But, don't count on it.  

Additional Resources:

Trademark Registration and the Single Book Title
Copyright Office - Search Fair Use Opinions

Classroom Use Guidelines (not legal authority; but agreed-upon minimums)

Creative Commons

 

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.  When in doubt, seek permission or the advice of counsel.

LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley &; Sons, Inc.).   Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association  (IBPA) and sits on the advisory board of The Beacon Press, one of America's oldest independent presses. 

He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin

Ask a Lawyer: Do I Need an Interview Release?

["Ask a Lawyer" appears in The Huffington Post. The "Q" to my "A" is  Jeff Rivera, a journalist who reports on publishing and entertainment trends and personalities.]

Q: I'm writing a book based on interviews I've done with political leaders, writers, actors, and other prominent people. Do I need written permission? What can I do to avoid being sued for libel?

A: What can go wrong if you don't have a signed release? Leading the parade of horribles are claims for defamation, false light invasion of privacy (a misleading implication that the average person would find highly offensive), and breach of contract.   

 

If you choose to forego a release, free speech, fair use, and implied consent defenses may insulate you against specific claims. However, because of the legal what-ifs, the ill-defined boundaries of implied consent, and the fact public figures are known to have large egos, deep pockets, and lawyers on speed dial, the best practice is to obtain a release.  

 

A well-drafted release will cover more than just permission to use a person's name and statements. For example, a release can potentially sidestep a lawsuit alleging alterations made to the speaker's words have tarnished their reputation. This is especially helpful when the individual is not a public figure and the statements do not concern a matter of public interest. 

 

Another potential problem a release can prevent is a disgruntled interviewee's attempt to revoke their consent or demand certain statements be deleted. The drafter of a release will want the unambiguous right to use the individual's name, voice and likeness to promote the interview. A release may include an indemnification clause that shifts liability from the publisher or podcaster to the interviewee. If the interview can be edited at the publisher or podcaster's discretion, the interviewee might try to exclude any editorial changes made without their consent from the indemnity.

Here's a link to sample interview releases. 

 

Spoken Releases

 

Did I hear you say, "What self-respecting political leader, bestselling author, or celebrity would sign an interview or guest appearance release? Excellent point. While less effective than a signed release, you can record the subject's consent. Provided the scope of rights is clearly defined, it's a viable alternative.  

 

While recording, before the interview starts, state the interview date and the interviewee's name. State clearly that the interview may be edited and used in all media, in whole or in part, in all languages throughout the world, in perpetuity. Then ask if you have their permission to record the actual interview and their answers to your questions. 

 

Of course, the law will hold you to your promise if the interviewee limits how or where the interview may be used. 

 

The Parade of Interview Horribles

 

Infringement and Libel Lead the Parade of Horribles

Copyright. Will the interviewee claim ownership of the interview? Some copyright scholars posit that the interviewer and interviewee jointly own the interview. To quality as a joint work, the interviewer (or podcast host) and the interviewee must agree that they will each own the interview. But that's not how things usually work in the real world. Most interviews do not qualify as joint works under the Copyright Act. In the rare instance an interview qualifies as joint work, either co-owner can issue non-exclusive licenses without the other's consent, subject to a duty to account for any profits made. 

The Copyright Office believes that an interview consists of two separate copyrights. That is right. They believe it consists of two separate copyrights - the interviewer and interviewee each owns the words they spoke. It's an interesting theory but of little practical value to the interviewer. Another legal theory is that the interviewer owns how the questions and answers are selected and arranged. In other words, the interview as a whole. So, who owns the interview? There's no bright-line rule. That's why it's a good idea to get it in writing.  

Libel, Privacy, Publicity. Without a signed release, writers, publishers, and podcasters are vulnerable to being sued for defamation and, a lesser threat, invasion of privacy. 

Libel is a false statement about a living person (business or group) that harms their reputation. Truth is a complete defense to a libel claim. Where the plaintiff is a celebrity or public figure, the plaintiff must show that the false statement was made with reckless disregard for the truth (aka actual malice). While a celebrity or other public figure may have difficulty winning a libel suit because of the legal actual malice standard, written consent is the best defense. If you transcribe accurately and can locate the recording or release, you've taken significant steps to minimize the risk of a successful libel suit. 

 

The right of publicity is the right to control the commercial exploitation of a person's name, likeness, or voice. However, the use of a celebrity's persona without their permission is generally protected under the "newsworthy" exception, provided it's related to the use and is not expressly misleading. The "newsworthy" exception applies not just to hard news but also matters of legitimate interest to the public, including sports, entertainment, and politics. In some states, a deceased person's right of publicity survives their death and may pass by will or be assigned.  

If you don't obtain consent, the advantage of interviewing a celebrity is that the First Amendment makes it difficult for a celebrity to bring a successful claim for invasion of the right of publicity and libel.   

The gold standard is a well-drafted written release. Document signing apps like DocuSign and Adobe Sign are simple e-signature solutions. Today we're habituated to clicking OK boxes without much thought. So, getting a release signed need not be a burdensome task.

Fair Use
 

If the ownership issue can't be resolved conclusively, you may be able to roll out the fair use defense. But it's a partial solution. For example, it may not allow you to publish an entire interview.

Fair use allows writers, podcasters, and others to copy (usually) small portions of in-copyright works for socially productive purposes without permission. Finally, as a defense to copyright infringement, fair use allows courts to avoid rigid application of copyright law where the strict application would "stifle the very creativity which the law is designed to foster."

Unfortunately, fair use is not amendable to mechanical rules. The fair use test takes into consideration or weighs four factors: (a) the purpose and character of the use, including whether the use is primarily commercial; (b) the nature of the copyrighted work; (c) the amount and importance of what's used in relation to the original work; and (d) if the use supersedes a market for the original?

Media Liability Insurance

If the subject matter is sensitive and you don't have a signed release, given the murkiness of the law, media liability insurance is something to look into. It's a specialized form of insurance that covers claims of copyright and trademark infringement, invasion of privacy, defamation, and other contextual errors and omissions. Some policies even cover claims of misappropriation of ideas and negligent publication. Most of these policies also cover defending a lawsuit, including attorney's fees and court costs. 

 #  # # 

 

I Shall Be Released, performed by Bob Dylan
 

 

 

Image:  Parade of Horribles and Antiques, Portland, Maine

Photographer:  Unknown

Year:  1920

Credit: Main Historical Society

Related Blog Posts

Libel in Fiction

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors 

THE INFORMATION PROVIDED HERE IS OF A GENERAL NATURE AND IS NOT INTENDED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC LEGAL ISSUE OR QUESTION, SEEK THE SERVICES OF A COMPETENT ATTORNEY.