Fair Use and Other Aspects of Coping with Copyright Law

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June 2011
by Steve Gillen

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“But honestly, Monica . . . ”

With these three words, the publisher of Cooks Source magazine launched an impatient email response to a writer’s infringement complaint.

Then she continued: “ . . . the web is considered ‘public domain’ and you should be happy we just didn’t ‘lift’ your whole article and put someone else’s name on it!”

Unfortunately for her magazine, she couldn’t have been more wrong about the copyright implications of Web posting. And although her misconception is all too commonly shared, her error—compounded no doubt by her condescending tone—ignited an Internet firestorm. The email went instantly viral; the publisher’s email and voicemail accounts were stuffed overnight with scathing messages; the magazine’s Facebook page was assaulted by “fans” posting mocking comments; Twitter buzzed with 140-character taunts tagged #buthonestlymonica; satirical videos popped up on YouTube; and advertisers fled, forcing the magazine to close within weeks.

Every copyright mistake is not so instantly and irrevocably fatal, but a persistent supply of copyright mistakes and misconceptions seems to be working mischief in two directions—in some cases causing publishers and writers to take what they should be asking for; and in other cases causing them to shy away from uses that are probably fair.

If you’d like to take a few minutes to check your copyright IQ, it makes sense to start with a review of what copyrights are, and what they aren’t.

Parsing Copyright Protection

Copyrights provide protection for works of original expression, including things such as text, photographs, illustrations, and other artistic and aesthetic works.

Protection is automatic and instantaneous just as soon as a copyrightable work is fixed in a tangible medium of expression. Although a copyright owner who wants to take advantage of the full range of protections available under U.S. law can make use of a copyright notice and registration with the U.S. Copyright Office, neither is required. The copyright rights vest in the author upon fixation with or without them.

The copyright owner’s exclusive rights include the right to:

  • reproduce the work
  • prepare derivative works based on the copyrighted work
  • distribute copies of the work
  • display the work publicly

The exercise of any of these rights without authorization from the copyright owner constitutes copyright infringement (unless it is excused under one of the recognized exceptions).

It’s important to remember, though, that copyright law provides protection only for authorship or expression—that is, for creative combinations of words and images, not for the underlying facts or ideas. The thinking here is that people shouldn’t be able to appropriate historical facts to their exclusive use simply by being the first to report them. Facts, statistics, and concepts can be copied and republished without permission (though you may nonetheless wish to cite the source for support or credibility).

What you cannot do is copy the creative manner in which the original facts or ideas were described or explained.

The unprotectability of facts and ideas gives rise to an under-appreciated distinction between paraphrasing and plagiarism. The word paraphrase (derived from the Greek para phrasien, to show alongside) means, in its proper sense, to extract unprotected facts from protected expression—a perfectly honorable endeavor. The word plagiarize, on the other hand (from the Latin plagiare, to kidnap), means to appropriate someone else’s literary composition and pass it off as one’s own.

But if extracting facts and ideas is permissible, how do you separate them from the expression in which they are found?

For fact-based works, names, dates, places, and events—answers to the journalist’s questions who, what, when, where, how, and why—are fair game.

Literary devices and techniques belong to the creators and are off-limits. Examples include allegory, alliteration, flashbacks, foreshadowing, onomatopoeia, rhetorical questions, and tautologies. As a general rule, these and other kinds of protected expression may not be “reproduced”—that is to say, quoted, adapted, abridged, excerpted, traced, photocopied, or captured electronically—without permission.

So a 200-word newspaper account about the appointment of a new member to a corporate board probably contains very little in the way of protected expression, but a 2,000-word human interest story or op-ed piece might contain very little in the way of unprotected fact.

Since the public’s interest in free access to facts and ideas is not a factor with fiction, the scope of protection for it is much broader, encompassing not only the literal words but also the original plot lines and developed characters contained in them. Accordingly, if you are publishing a book about a celebrity who is principally known as a character in a film or television series, it is not enough to avoid including portions of the scripts. You must also be careful not to reproduce a description of the plot or of character traits that is so detailed that you have effectively appropriated a significant portion of the creator’s labors.

Examining Exceptions

Under some circumstances, expression protectable under copyright law may be freely available for use without permission. Perhaps the material lost its protection for failure to comply with the statutory prerequisites under prior U.S. law; perhaps it is excluded from copyright protection because it is a publication of the U.S. government; perhaps its term of protection expired and it entered the public domain for that reason or some other one.

Two decades ago U.S. law put conditions on copyright protection. Works first published prior to March 1, 1989, were required to carry a sufficient copyright notice, and any work that failed to satisfy this condition lost its copyright protection. If you are interested in quoting from a work that you know was published before this date, and if you have a complete, authorized copy that does not include a legally sufficient copyright notice, the work may be in the public domain.

Now, it is nearly impossible to lose copyright protection. The change in U.S. copyright law in 1989 eliminated the requirement of a copyright notice as a condition of copyright protection.

All works for which the statutory copyright period has expired are in the public domain. In the two decades prior to 1998, U.S. copyright law went through a series of changes that made the calculation of a work’s copyright term an exercise in higher math. The cumulative effect of all these changes is that any work first published prior to 1923 is now necessarily in the public domain and may be freely copied or distributed. Works published after 1923 may also be in the public domain, but you can’t assume that they are without a search of the U.S. Copyright Office records to ascertain whether or not statutory renewals had been obtained on time.

Works that were created but unpublished as of 1978 are subject to a different set of requirements and may have a term of protection that extends to the year 2047 or beyond.

Publications of the federal government and its agencies are excluded by law from copyright protection. But the same is not true for works produced by state and local governments. And an essential element of the rule is that federal government documents must have been “authored” by the federal government. If someone under contract to the government writes a document and transfers or assigns the copyright to the government, then the government holds the copyright and you must get permission to copy or distribute the material.

The Fair Use Defense

The Fair Use Doctrine is a complex rule intended to protect the right of reasonable public access for certain limited purposes to works otherwise protected by copyright law.

The copyright statute says “fair use” of a copyrighted work without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright. Whether the use is “fair” is determined by considering four factors:

  1. the purpose and character of the use, including whether it is of a commercial nature or is for nonprofit educational purposes
  2. the nature of the copyrighted work
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. the effect of the use on the potential market for or value of the copyrighted work

A good example of the doctrine’s application is the right of a book reviewer to quote passages from a book being reviewed without the consent of the book’s author and for the purpose of illustrating comments and conclusions in the review. Quoting from the published works of others for the purpose of analyzing, commenting on, or building upon their stated views or theories probably falls within the ambit of fair use. On the other hand, borrowing all or a substantial portion of a copyrighted work in order to avoid the necessity of creating or writing one is probably not within the scope of fair use and would require permission.

Whether a given use is fair is a mixed question of law and fact determined by the courts, case by case, and considering in each instance each of the four factors. While there are statutory provisions for library photocopying and legislatively endorsed guidelines for classroom copying, there are no statutory or case-law rules of thumb for most commercial purposes.

A rumor, persistent among publishers and authors, has it that the law does provide for a word-count safe harbor—some say 300 words is the limit, some say 500, some say 1,000, some say 10 percent. Wherever these notions come from, none of them is grounded in fact.

A few recent cases make the point.

In Salinger v. Random House, 200 words from the unpublished letters of J.D. Salinger directly quoted in an unauthorized biography were deemed to exceed the bounds of fair use, largely as a result of the unpublished character of the original letters.

Harper & Row v. Nation Enterprises, 300 words from a book quoted in a magazine article published prior to the release of the book were deemed outside the scope of fair use, in part because the unauthorized publication scooped the book publisher and undermined the value of the first serial rights to the book.

At the other end of the spectrum lies Maxtone-Graham v. Burtchaell, where 7,000 words from a pro-choice document about unwanted pregnancies were quoted in a pro-life work critical of its analysis and conclusions. The Maxtone-Graham court first paid homage to the single, irrefutable rule of fair-use analysis, saying: “There are no absolute rules as to how much of a copyrighted work may be copied and still be considered fair use.” Here the court was influenced by the motivation behind the second work, which was intended as scholarly or philosophical criticism and was not a purely commercial endeavor, in reaching the conclusion that this extensive use of material was within the scope of fair use.

Two other cases illustrate the difficulties of dealing with fair use in media other than text.

Wojnarowicz v. American Family Association involved the unauthorized photographic reproduction of fragments of 14 provocative works of art in a pamphlet critical of the public funding of such controversial works by the National Endowment for the Arts. While the artist quite naturally objected to this use of his works to attack the source of his funding, the political nature of the pamphlet, coupled with the fact that only a small portion of each original work was reproduced (ranging from 1 to 17 percent), convinced the court that the use was fair.

Bill Graham Archives v. Dorling Kindersley involved the reproduction in reduced size of Grateful Dead posters and concert tickets to illustrate a timeline in a 480-page biography of the Grateful Dead. In finding that this was a fair use even though the posters and tickets were reproduced in their entirety, the court said that the book publisher’s use of the images in a timeline was transformatively different from their mere expressive use as concert posters or tickets. Transformative uses may include parody, criticizing the quoted work, exposing the character of the original author, and discussing a fact or summarizing an idea in the original in order to defend or rebut it.

There are no bright-line tests for fair use of music, and the issue of whether or not the use of brief excerpts of song lyrics qualifies as a “fair use” is not often litigated. However, a couple of older cases decided under a now-superseded version of the copyright act may be instructive.

In Broadway Music v. F-R Publishing, The New Yorker magazine quoted a portion of the chorus of a song in connection with its commentary on the death of Pearl White. The court held that the use was permitted as a fair literary comment on Ms. White’s death (she had appeared in a movie connected to the song). In Karll v. Curtis Publishing, the Saturday Evening Post reprinted eight lines of the chorus of the “official” song of the Green Bay Packers in a story about them. In both these cases, it was doubtless important that quoting lyrics without music would probably not have a negative impact on the commercial value of the songs themselves. The same analysis would likely obtain today under the current copyright statute.

With song lyrics, too, the strength of any fair use argument is bolstered if the amount taken is small and the use is closely connected to a legitimate comment on, or criticism of, the sentiment expressed in the lyrics (as opposed to appropriating song lyrics not for what they say about the mindset of the songwriter or the listening public but rather as a substitute for writing original verse).

Practical Pointers and Guidelines

In the absence of any bright-line test, what can we infer from these and other fair use cases?

  • Fact-based, nonfiction, or scientific works receive less protection than fictional works, and commercial works will probably be given less protection than literary or artistic works.
  • Commercial uses are accorded less deference than uses that have a significant noncommercial
  • Tables and charts containing facts can be copyrightable to the extent that the arrangement of information is original or creative (the facts are fair game, but the manner of display may not be).
  • If you plan to use material you believe was published by a federal agency, you need to check for a copyright notice. If there is no copyright notice on the document, it is reasonable to assume that it is authored by the government and is in the public domain.

If you are quoting or copying without permission in reliance upon fair use:

  • Transcribe accurately from the original.
  •  Provide proper attribution to the source (your credit line should say “Source: . . . ” or “As reported in . . . ” and not “Adapted from . . . ” or “Reprinted with permission from . . . ”).
  • Take only as much as you need for a permitted purpose—criticism, comment, news reporting, scholarship, teaching, or research.
  • Avoid segregating the quoted material in a sidebar or box, particularly if you have appropriated the material simply to add illustration or color and as a substitute for creating an illustration or example.
  • Make your use of quoted material transformative—that is, work it into the context of what you are otherwise saying and add some value by the use of criticism, comparison, or comment.

Bottom line: As difficult as it can be to know for certain whether the use you propose is fair, simply getting close may be good enough—the lack of certainty affects defendants and plaintiffs with equal force. Because U.S. copyright law gives a court the discretion to award fees to a defendant who prevails, a plaintiff who isn’t certain of a win risks not only the loss of the case but also the unhappy possibility of having to pay the lawyers on both sides. (In 2004, Mattel was assessed nearly $2 million in fees for overzealous prosecution of an infringement claim in the face of a sound fair-use defense.)

Arguably, publishers and authors have not only a right but an obligation to defend First Amendment free speech and free press rights by making constant and vigorous use of the fair use defense—a malleable doctrine that has evolved over time and that is constantly challenged by the forces of changing technology and media.

Requesting Permission

Sometimes the path of least resistance is to ask for permission. Where permission is required or advisable, the first step is to determine whom to contact. Often the publisher rather than the author holds the copyright.

Note that sometimes a published work contains materials reproduced with permission. If you want to reproduce parts of those materials, you must contact the original grantor of permission, not the party to which it was granted.

Permission requests should be in writing and should be directed to the permissions editor if a publisher holds the copyright. In the request, identify exactly what you wish to reproduce, and include photocopies of both the pages you wish to reproduce and the title page. In addition, describe what you plan to do with the copyrighted material as precisely as you can. If possible, include a draft of the work in which the material is proposed to be used.

The chances of receiving royalty-free permission to reproduce a work will be increased if you are able to provide and explain a nonprofit, educational, or public interest purpose in, or a public relations benefit from, the proposed use of the work.

You can expect the permissions process to take anywhere from a few weeks to as long as six months, and you may need to follow up on your original written request by phone, fax or email. It is a good idea to get your permission in writing or, as a second choice, to confirm an oral grant by sending a written statement about the permission back to the grantor.

For more information, see Lee Wilson’s “Copyright Permissions and How to Secure Them” via “Independent Articles” on the ibpa-online.org home page.


Steve Gillen, a lawyer and partner in the intellectual property firm of Wood Herron & Evans, has focused his practice on publishing and media matters for 30 years. He is a member of IBPA and a frequent contributor to the Independent. To reach him, email sgillen@whepatent.com or call 513/241-2324.

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