An Writer's Guide to Fair Use and Permissions

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