Fair Use of Copyrighted Material

Last month I warned you against using copyrighted material on the Internet without permission. But what if you can’t get permission?

The copyright law allows what it calls “fair use.” Unfortunately, it isn’t always easy to know what use is fair.

The statute sets out several factors for courts to consider, but it isn’t a simple mathematical equation—just because you meet most of them doesn’t mean you win.* The courts look at all the facts and circumstances in the case. In Harper & Row Publishers, Inc. v. Nation Enterprises, the U.S. Supreme Court found that a purported book review that used approximately 400 words from a 200,000 word manuscript violated the copyright.** For a more detailed discussion of that case, read my July 23, 2013 Hoosier Ink post. 

Still, by looking at the statute and the cases together, it is possible to get a general idea of what qualifies as fair use.

• Criticism or comment, news reporting, teaching, scholarship, and research are often fair use, although it may depend on how much of the original material is borrowed. Fair use does not usually allow a teacher to copy books, movies, or music for classroom use.
• If the use is primarily commercial (e.g., you included the lyrics from a copyrighted song in the novel you hope will become a bestseller), the courts are less likely to find that it is a fair use than if the use is for nonprofit educational purposes.
• The courts also consider the nature of the copyrighted work. The courts are more likely to find fair use for copying passages from a scientific text than for paraphrasing material from a novel.
• If you use a significant amount or a defining aspect of the work, it is less likely to be a fair use. Those 400 words in the Nation Enterprises “book review” were less than .1% of the manuscript, but they were the meatiest parts.
• The courts also look at how the use affects the potential market for or value of the copyrighted work. If the use increases the copyright owner’s profits, it is probably fair use. If it takes money out of the owner’s pocket, it probably isn’t. For example, if you quote just enough to whet your readers’ appetites and send them running to the bookstore to buy the book, it is probably fair use (and the copyright owner is unlikely to complain, anyway). If you photocopy an entire book and give it to someone who might have bought it otherwise, it is unlikely to be a fair use. On the other hand, a negative book review may turn away potential buyers, but as long as it doesn’t use more of the text than is necessary to make its point, it is still fair use.

Here is my personal rule about using copyrighted material without permission: When in doubt, I don’t. But if I’m confident that it’s a fair use, I don’t let the copyright bullies talk me out of it.

Because that wouldn’t be fair.   

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* 17 U.S.C. § 107 describes the fair use factors.

** Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.