Fair Use: what does it mean for writers and scholars?

Academics, writers, musicians, video producers, publishers, and other creative professionals have all heard of the “fair use doctrine”, that under certain circumstances allows us to quote copyrighted text, images, or sounds. But what is it, in plain English?

First of all, a disclaimer: I am not a legal professional — I have merely acquired a working knowledge of the concept through my day job — and nothing I write here should be taken as legal advise.

Second, while the concept existed in common law for a long time before that, “fair use” was officially enshrined as statutory law in 1976 as 17 U.S.C. § 107 

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use 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; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

[Emphasis mine in the above.]

This four-part test was actually first formulated by US Supreme Court Justice Joseph Story (1779-1845; “what’s in a name?”) in the ruling on Folsom v. Marsh: this case concerned somebody who had published his own two-volume condensation of a 12-volume biography of George Washington. SCOTUS decided that yes, such derivative works were within the rights of the original copyright owners (the plaintiff), and that Marsh, the defendant, had violated their copyright.

In plain English: Justice Story argued that by publishing an “all the good bits” abridgment, Marsh had greatly reduced the sales potential of the long original.

Let me illustrate the four-part test with a few concrete examples:

(1) Quoting another scholarly author’s argument in a scholarly work, with proper source attribution, and clearly marking it as a quotation rather than one’s own words: fair use, and common established practice.

  • typically, the works being quoted are noncommercial to begin with
  • typically, the quote is a very small percentage of the full paper or book
  • the “market value” of a scholarly paper is measured in citations, and your action will generally only increase those

(2) Quoting a phrase, quip, aphorism,… of another author in one’s novel, clearly marking it as a quote? Accepted practice. Typically, the quote is 0.00x % of the whole book, and this is actually a way of bringing tribute to the writer being name-checked.

(3) Quoting a few lines from a poem or song lyric in your fiction book? Aha, now this is another matter — because even a few lines constitute a nontrivial percentage of the original work, so this would fail the amount and substantiality test.

My editor taught me a serviceable workaround: paraphrasing the lyrics in my own words. It is the words that are subject to copyright, not the ideas conveyed in them. [Cf. the idea-expression divide in intellectual property law.]

And if the poem in question is in the public domain (e.g., Shakespeare, Tennyson,… or generally anything published before 1923) then of course no issue arises.

(3b) Quoting a picture or graph from one work in a scholarly work of yours? Well… as “masgramondou” put it, “one picture is worth a thousand words — assume the same holds for copyright purposes”. The way I think of it: the image is a complete unit unto itself, and it would be more akin to quoting an entire chapter or section of a written work (or an entire verse or chorus of a song lyric).

And so, where for a textual quotation source referencing would be adequate, one would have to apply for copyright permission to the original copyright holder. In practice this is less of an imposition than it seems: most scholarly publishers have a (semi)automated mechanism in place where one can apply online with full personal details, details of the work being quoted, details of the work it’s being quoted in (review articles are actually the most common scenario), and commercial or noncommercial character of the derived work. (The last time I needed such permission for a paper in my day job, it cost me $0 and all of two minutes.) The licensed picture is then almost invariably accompanied by a statement along the lines of “From H. Slowcoach and L. Tortuga, Journal of Chelonian Reproduction 12, 345 (1967). Copyright American Association for Herpetology. Reprinted with permission.”

(3c) Recycling somebody else’s artwork in your own commercial fiction book? Unless it’s in the public domain or you licensed it form the copyright holder, you are setting yourself up for litigation or at the very least “cease and desist” letters.

Stock photos are another matter. They are “works made for hire” from a copyright point of view: once you bought them, they are yours to use. Their use in book covers can entail other issues — such as when two authors use the same stock photo — that one may wish to avoid, but they are in a different realm than copyright infringement.

Coming back to scholarly nonfiction for a moment: The scientific world in recent years has seen the emergence of licensable image libraries (e.g., Springer Images). Particularly in the life sciences, where diagrams and elaborate artistic renderings are more common than straight plots or data visualization, such image libraries have their places, and can save money compared to hiring a skilled visual artist with the appropriate background.

(4) What about music?

• In a music-centric novel, describing musical compositions in great detail — short of actually including transcribed scores — is apparently fine.

• Using audio of a well-known popular song for an audio book or a book trailer in practice means licensing. It can get tiresome enough that people might instead hire a musician to compose something “in the style of [insert popular song]” and use that instead

• most classical compositions are in the public domain, but specific audio recordings (e.g. for use in an audiobook or book trailer) need to be licensed. As part of the “open culture movement”, there are artists that make their own recordings of classical pieces available under Creative Commons licenses: these may be a good alternative. Otherwise, you know what? Go to your local conservatory and offer to pay somebody to record the track for you.

(5) Reproductions of visual works of art

• What if I, say, wanted to use a digital image of a Renoir painting as a book cover? (Assume it’s a “literary fiction” book, since that’s what cover designers tell me such use would signal.) The copyright here applies to the photograph, strange as this might seem. Museums that allow downloading of digital images of their collection typically stipulate that such images are “for personal use only”. In some cases, if photography in the museum is permitted, one can legally visit the museum in person, take a picture (usually without a flash) and use that.

Speaking of book covers: who “owns” the copyright to a book cover? They are generally produced as “works for hire” by a cover designer, and whoever commissioned the work and paid for it owns the rights to the cover (typically: the publishing house, or the author if it is an indie publication). Recycling by somebody else as artwork for commercial publication projects without licensing or permission constitutes copyright infringement.

Very recently and importantly: Concerning the special case of “thumbnails” showing up in searches or use in product links, the Ninth Circuit Court of Appeals has ruled in Perfect 10 v. Amazon  that these are a highly “transformative” use and that they are to be considered fair use. The ruling gave much weight to “the public interest” [in search engines etc.]. It also  held that hyperlinking to such images does not constitute “secondary copyright violation”.

(6) What about parody?

Parody (if clearly recognizable as such) is an affirmative defense: a landmark court case on the matter is Campbell vs. Acuff-Rose Music, a.k.a., the “Pretty Woman” case. It involved the rappers 2 Live Crew, fronted by Luther Campbell (stage name “Luke Skywalker”), who had recorded their own “version” of Roy Orbison’s classic song: they had kept only the iconic bass riff (which I presume they  programmed into a Roland TB-303) and chanted (I would not dignify their performance with the term ‘singing’) their own lyrics over it (which focused on such features of the woman as her derrière, hair in certain places, promiscuity—you get the drift). They had in fact approached the copyright owners (Acuff-Rose) for licensing the song for a parody but been told to take a hike, then recorded their own version anyway. The court found in their favor, ruling that parody was a “transformative” use [in the legal sense of the word] rather than a merely “derivative” one.

marcel_duchamp_mona_lisa_lhooq
Marcel Duchamp’s parody of the Mona Lisa is often cited as a classic example of a transformative work

So for example, if I were to release an album and issue an ad with a picture of my own album cover, plus one of “St. Anger” by Metallica as “this is not what you will get”, I would be over the line — a picture is a complete unit, and promotional material is clearly not scholarship or commentary. If instead I drew a parody cover of a fictional album “St. Anal” by “Banalica”, I would probably be safe — but even then I might get legal advise first to be on the safe side.

 

 

Summarizing:

  • there is a simple 4-factor test for “fair use”
  • in general, scholarly use is much more permissive than commercial use
  • anything quoted should be a trivially small percentage of the whole work, and in particular should not be a self-contained unit of the whole work
  • use should not detract from the commercial revenue potential of the original
  • there are commonly accepted usages; there are abusages that are manifestly illegal; and there is a gray zone in between when one might wish to get legal counsel, or at the very least err on the safe side.

Media companies tend to be very aggressive (often to the point of seeming absurdity) in asserting their rights: for noncommercial use, a recent development has been Lenz v. Universal Music. (a.k.a. the “dancing baby case”). The plaintiff, Stephanie Lenz, had posted a YouTube video (less than 30 seconds) of her baby dancing to the Prince tune “Let’s Go Crazy”. Universal Music sent a takedown notice under the DMCA: in response, Ms. Lenz sued Universal, and the case eventually reached the Ninth Circuit Court, which held for that

[copyright holders have a] “duty to consider — in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use”.

This almost creates the legal situation that exists in Israel — where “shimush hogen” (fair use) is legally a right rather than an affirmative defense, and one can actually sue a company for not permitting fair use. However, to be clear: this does not mean that use that is obviously not fair in the legal sense of the word now magically has become so.

Dessert

By way of dessert, here is a musical example of a “transformative work” I rather like. The original was a Rob Dougan track called “Clubbed to death” used in The Matrix soundtrack. It ironically itself starts off with a sample from an orchestral performance of Elgar’s Enigma Variations. I remember thinking “boring, but could be a good track to jam over” when I first heard it — then a guitarist named Tom Shapira recorded this amazing improvisation over it. Enjoy!

 

 

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