Friday, February 25, 2022

A Writer's Guide to Fair Use

Free Expression, Fair Use and Permissions

 By Lloyd Jassin

Fair Use is a balancing test.
Fair Use is a balancing test.

The fair use doctrine allows authors, artists, and musicians to make reasonable use of the copyrighted works of others without paying a fee. Without it copyright owners could squash creativity and censor speech they didn't like.

While permission is not required for every quote or illustration that appears in a book, if the use doesn't serve the greater public good, it's unlikely the use is a fair use. 

What is Fair Use? 

Fair use is a defense to copyright infringement. How the borrower uses the original work is critical to the fair use analysis. Uses that challenge, interpret, build upon, tease, or poke fun at the original work, resulting in new insights and meaning, are referred to as transformative uses. Commentary, criticism, scholarship, news reporting, teaching and parody are examples of transformative uses. The more transformative the use the greater the chance the use will be judged a fair use.

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 factor 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; 
  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."

Fair Use Guidelines

Despite the unpredictable nature of fair use, here are judicial-based guidelines to help you decide when to ask for permission. 

  • 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 suing the work to buttress your arguments or the arguments of others?  The stronger the transformative nature of the use, the less important the commercial nature of the use.
  • Since ideas are common property, fair use is more likely to be found when 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 unpublished materials exposes you to greater risk than quoting from published materials. While not determinant of copyright infringement, if a work is unpublished, it weighs against fair use. 
  • 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.
  • Parody is a work that ridicules or mocks another work. Fair use looks favorably on parody. Make sure the parody is apparent. A conservative approach conjures up just enough of the original to convey your parodic points. 
  • Being a non-profit will not shield you from liability for copyright infringement if you exceed the bounds of fair use.  
  • 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 prospective licensing revenue, it is probably not fair use. However, the more transformative the work, the less factors like economic impact matter. 
While it's impossible to formulate exact rules, a fair use, to paraphrase the Chicago Manual of Style, is simply a use that is fair. Unfortunately, fairness, like beauty, can be debated but not defined. If you are uncomfortable with the case-by-case nature of fair use determinations, it is best to err on the side of caution and seek permission, or consult with a copyright attorney.    

Section 107 of the U.S. Copyright Act

Additional Resources:
  
Image
Title:  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 pertaining to 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.).  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 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

No comments:

Post a Comment