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Fair use

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An awful lot of people are still confused about copyright and the idea of "fair use." If EditorCon ever happens, I'm gonna make sure there's at least one panel/discussion/talk devoted entirely to this topic.

(I should start by noting that the below applies only to US law--I know nothing at all about this stuff outside of the US--and that I'm not a lawyer, just an interested layperson, so nothing here should be construed as legal advice. Also, this entry's intended audience is someone who wants to copy or excerpt something, not someone who wants to prevent others from copying their work.)

I think perhaps the biggest and most important point for everyone to understand is that this stuff does not work the way you probably expect and want it to. Just because a use seems intuitively like it ought to be legal does not make it legal.

So for anyone who has ever wanted to quote someone else's work in any context, I really strongly urge you to go read two articles:

For lots more detail, the best online source of information about this stuff is Stanford University's Copyright and Fair Use Overview; that page is a table of contents for a couple dozen articles on various copyright-related subjects. (Apparently the content there was provided by Nolo, mostly from Richard Stim's book Getting Permission: How to License & Clear Copyrighted Materials Online & Off, which I should probably buy and read.)

Here are a couple of the specific pieces about fair use they provide:

  • Measuring Fair Use: The Four Factors. Read, or at least skim, this page if you have any interest in this stuff.
  • Summaries of Fair Use Cases. You don't need to read all of these, but I recommend glancing over a few of them, just to understand how non-intuitive this stuff can be. I particularly recommend reading the bit about the Dr. Seuss parody down near the end of the page, for those who think that parody is an all-encompassing defense. Turns out satire is not the same as parody.
  • Disagreements Over Fair Use: When Are You Likely to Get Sued? Mostly points out that lawsuits are expensive whether you're legally in the right or not.

One more important thing about fair use: an article on Fair Use: Interpretations and Guidelines from the Publishing Law Center, focusing on the question of how much of a given work you're allowed to use. The key point here that a lot of people don't know is that even if you quote only a very small percentage of a copyrighted work, your use may be found to infringe if what you quote is "qualitatively substantial, constituting the 'heart of the [work].'"

I should note that copyright law gets even weirder around music copyright, where you have stuff like compulsory licenses and mechanical fees. That's all way beyond the scope of this entry.

Finally, it's worth noting that most online information about copyrights is written by lawyers, and my impression is that most lawyers generally advise clients to err on the side of caution. There are, however, a lot of people out there who take a different general view: that copyright ought to balance creators' rights with other people's rights, and that therefore it behooves us all to exercise fair use rights as much as possible. I think such people would generally advise not seeking permission for anything that could conceivably be seen as fair use, on the grounds that seeking permission only encourages belief in restrictive copyrights. I have a hard time with that view, so I'm probably not presenting it very well, but I thought in fairness that I should mention it exists.

Relatedly, it's pretty unlikely that (say) a blogger is going to have to deal with an expensive lawsuit for quoting a few paragraphs of a news article. In most cases, if you do something that a copyright owner feels infringes, they'll send you a cease-and-desist letter rather than immediately filing suit, and you can decide at that time whether it's worth it to you to stand up to them.

(If this happens to you, you should probably get in touch with the Electronic Frontier Foundation immediately, and you'll probably also want to read up on C&D letters at the Chilling Effects Clearinghouse. Even if it hasn't happened to you, you may want to read the EFF's Legal Guide for Bloggers.)

So I'm certainly not saying that if you ever quote something you'll end up in jail. There's a lot you can quote that's firmly within the bounds of fair use. And chances are pretty good that you can get away with a lot of stuff that wouldn't stand up as fair use in court, and chances are pretty good that if you don't get away with it, the worst consequence is that you'll have to take it down.

But you should be aware that there is a risk here. And the reason I started this entry by talking about editors is that the risk is in some ways greater for editors (and fiction writers) than, say, for bloggers. Use of a given excerpt for commentary seems to me more likely to be found fair use than use of that same excerpt in a commercially published work of fiction. And I didn't touch on quotations of lyrics and poetry here, but quoting famous song lyrics in published fiction can get you in a whole heap of trouble, and/or cost huge amounts of money, even if the quotation in question is brief.

So really, here's my point: if you plan to quote someone else's work, get informed about what is and isn't legal to do, and what the likely consequences may be.

2 Comments

Thank you. I'll add, because I always try to add this in conversations I have about fair use and copyright, that the legislation is extremely vague, and that it is very difficult to predict what a particular judge will do in a particular case. However, the trends (from what I see) are for both legislators and judges to increasingly treat intellectual property as if it were real property. This means that a case that may have been dismissed twenty-five years ago may now go to trial, and that a case that might have been lost twenty-five years ago may now be won. When coupled with the fact that anything you were told about fair use by a librarian or professor was almost certainly ... a generous interpretation of what was allowed under the law, I would advise as a rule of thumb deciding any time anybody ever told you that any particular amount of copying or reason for copying was covered under fair use, that amount and/or reason could now get you into a lot of trouble.

Thanks,
-V.


Interesting and useful resources, thanks!

This is somewhat tangential to the main issue you raise here, but I thought you might find it of interest anyway: Chilling Effects Clearinghouse has a FAQ about fanfiction and copyright law. It's not as straightforward as one might think, because no sweeping judgement has ever been made in court.


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