Fair Use – well, it is a common issue in the publishing industry and we need to be mindful of the lines we should not cross when utilising quotations from copyrighted work. This article will give you scope and an understanding of what you need to take into account as an author when encountering this issue.
So what is Fair Use? Simply put, fair use allows you to use a limited amount of copyrighted material for a limited purpose without the permission of the copyright owner. I will explain the limitations below. What we need to remember is that fair use is not a loophole allowing you to breach copyright. It is actual a defence used in court if you are ever sued for copyright infringement. So while you may think that the use of Katy Perry’s Roar lyrics may fit within fair use, it is only the courts that can determine whether that use of copyright material fits under fair use. In brief, there is a risk in thinking that you fit within these parameters and if you wish to avoid that risk you have two options;
- Secure permission from the copyright holder
- Remove the copyrighted material.
Let’s go a bit deeper. When I was in trade publishing in New Zealand, our team encountered this issue with a publication we were working on and through our research we identified four factors of fair use that are to be considered in deciding if the use of copyrighted material firs within the parameters of fair use. Don’t rely solely on these as they are an overview and there would be other elements the courts would consider if it ever reached that stage, but it does give you an understanding of each of the major influencers in the decision.
1. Purpose and Character within Fair Use
Use of copyrighted material without permission for a commercial purpose is not considered fair use however if it was used for a non-profit nature then this is looked upon more favourably. In saying that, during my research for this article I discovered that a high percentage of cases where fair use was used as a defence were successful based on commercial use. These cases came under specifics such as ‘criticism, comment, news, education or research.
2. Nature of Copyrighted Work
There have been cases where the courts interpreted this to mean that fair use was not in favour when the copyright material was ‘creative, original and imaginative’. This is indicating that any copyright infringement form a work of fiction is less likely to be considered fair use over content from non-fiction sources. Also within this factor is when you use content from work that has been discontinued or out of print. Courts do not look favourably on this within the fair use defence.
3. Amount and Sustainability
The most common understanding amongst the use of fair use is that less is more. In other words, the less copyright content you use then the more likely that your use of that content fits within the fair use parameters. Keep in mind that legally, there are no benchmarks for determining how much is too much. Historically, some publishers have followed a 300-word rule but this is not to be taken as a legal loophole. However, based on previous cases, look at a calculation of the percentage of the copyrighted work that is being used in your manuscript and the percentage of your work that is copied from the copyrighted work. Whatever the outcome, the higher the percentage the less likely it will be considered fair use. Again, this percentage exercise is not a legal certainty. It will always come down to what the courts decide. For example there was a case in the US over 30 years ago where the Supreme Court ruled that 300 words copied from a 200,000 word publication was not fair use as what was copied ‘took what was essentially the heart of the book’.
4. Effect on Market Potential
If the copyrighted work has an effect on the market for that work, it will be highly unlikely fair use would be considered. Be mindful of the context in which you are using that work.
Music and Good Faith within Fair Use
Now let’s explore two very common situations where copyrighted material is used and how fair use fits into them.
Song lyrics are regarded as high risk when it comes to fair use. 20 words from a song of 60 words highlights the earlier point around amount and sustainability that would indicate this example would be unlikely to fit within fair use. In addition music producers and studios tend to be very vigilant and will not hesitate in taking legal action which increases that risk. I can confidently say that if you are considering song lyrics for your book, even if it is tied to the best possible impact for the copyright holder, seek permission or reduce the usage to just 2-3 words. This along with referencing the song title, author, producer and copyright, specifically if it is for the approved purposes of commentary, criticism, reporting, etc, will likely be within the parameters of fair use.
The second common situation is Good Faith. Whilst the courts don’t directly inquire as to the motives of a person who breaches copyright, they have been known to consider this question in proceedings. In saying that, it is prudent to put verbatim quotes in quotation marks, credit the source and include a statement of the author’s or publisher’s justification for reliance on fair use.
In both of these cases and in fact all areas of contention around fair use and copyright material, it is recommended that you do seek legal advice. Don’t jeopardise the quality of your manuscript, your intention and integrity or the potential success of your published book by ignoring this issue or talking yourself into thinking that ‘they will never know’.
Conclusion – Fair Use
Take care of where you draw your sources, why you’re using them and ensure you are referencing them correctly. If you are unsure on how that is to be done, the Ocean Reeve Publishing editorial team can help you here. The key is honesty, transparency and integrity at all stages of publishing and marketing. Fair use is exactly that, fair use – so we hope this blog helps you with that understanding and you act in accordance with those that have birthed the creative works you wish to use.
See you next time.
#becreative #beinspired #bepublished