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.

The Case of the Purloined Hat

In 1995, Penguin published an illustrated book about the O.J. Simpson trial. The book was called The Cat NOT in the Hat! A Parody by Dr. Juice and included at least eighteen images showing O.J. Simpson wearing a scrunched-up red-and-white stove-pipe hat. While the book’s title, its narrator (Dr. Juice), and the hat all conjured up images of Dr. Seuss and his best-known character, the book itself was not about Dr. Seuss or his famous cat. Neither did it criticize either the substance or the style of the Dr. Seuss book.

According to the 9^th Circuit, the authors of The Cat NOT in the Hat! used the hat and the other Dr. Seuss references to get attention, or maybe they were simply too lazy to be creative. Unfortunately for them, the image of the well-known hat was copyrighted.

Last month’s post on "The Case of the Disappearing Wind" introduced the use of parody as a defense to a copyright infringement claim. As that post noted, the Supreme Court has defined a parody as something that comments on the substance or style of the original work in a way that makes the original appear ridiculous. A new work that makes fun of something other than the original work may be a satire, but it is not a parody.

“The Cat NOT in the Hat! A Parody by Dr. Juice” was, despite its name, NOT a parody. Its criticism had nothing to do with the Dr. Seuss book. So after considering all four factors described in my July 25, 2013 post, the 9^th Circuit Court of Appeals ruled that it was not a fair use, and it prohibited Penguin and the authors from publishing or selling the book.

This doesn’t mean that a satire can never be a fair use. But the satirist does not have to use as much—or perhaps anything at all—from another copyrighted work in order to make his point. As a result, a satirist is not allowed to borrow as much as a parodist can.

The image of the cat’s hat was also a registered trademark. The test for copyright infringement is very different from the test for trademark infringement, however. In this case, the 9^th Circuit agreed with the district court that it needed a trial before it could decide whether there was trademark infringement.

So how does parody work in a trademark case? Tune in next month for the Case of the Sarcastic Spy.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. 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.

The Case of the Disappearing Wind

Alice Randall wrote a novel called The Wind Done Gone, which used the characters, plot, and major scenes from Margaret Mitchell’s best-selling book, Gone With the Wind. Although the two books are substantially similar for copyright purposes, the second book turns the first on its head. The Wind Done Gone is told from the point of view of a black slave rather than a white plantation owner’s daughter. The individuals with strength of character in Mitchell’s work are weak individuals in Randall’s work, and vice versa. Furthermore, the Southern customs and values that were treated sympathetically in Gone With the Wind are shown as corrupt in The Wind Done Gone.  

Suntrust Bank, as trustee for the Mitchell Trust, sued Randall and her publisher for copyright infringement. Randall claimed that The Wind Done Gone was not substantially similar to Gone With the Wind (an argument she lost) or, in the alternative, that it parodied the earlier work and was a fair use (an argument she won).

As noted last month in "The Case of the President's Words," the first fair use factor is the purpose and character of the allegedly infringing work. In a separate case, the Supreme Court said that parody is a transformative use under that factor and defined parody as something that comments on the substance or style of the original work in a way that makes the original appear ridiculous. (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).)

The 11^th Circuit found that The Wind Done Gone was a parody of Gone With the Wind because the second book challenged Gone With the Wind’s idealized portrait of the South during and immediately following the Civil War.

The nature of the allegedly infringing use is only one factor the courts consider. Although most parodies--or at least most recognizable parodies--are fair uses, that is not an automatic result. But it was the result in this case. After analyzing each of the four factors, the 11^th Circuit found that The Wind Done Gone did not violate the copyright laws.

The 11^th Circuit’s analysis came early in the case and could theoretically have changed after a trial. Theoretically, but not realistically. And since Suntrust Bank dropped the lawsuit, we’ll never know for sure.

When is a parody not a parody? Tune in next month for the Case of the Purloined Hat.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. 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.

The Case of the President's Words

Former President Gerald Ford wanted to write his memoirs, and he entered into a contract with Harper & Row to publish them. The contract also gave Harper & Row first serial rights, which it then sold to Time Magazine. That means Time paid Harper & Row for the exclusive right to publish parts of the book before it was released.

Then the editor of The Nation purloined an advance copy of the manuscript. He had only a couple of weeks before Time was due to print its first excerpt, so he threw together a quick, 2,250 word article that quoted the highlights of the book, including Ford’s reasons for pardoning Nixon. The Nation intended to scoop Time, and it did. Because Time’s exclusive rights were no longer exclusive, it cancelled its agreement with Harper & Row.

Harper & Row sued The Nation, claiming that the magazine had infringed the copyright in President Ford’s book.

Copyrights exist to inspire creativity, not to suppress it, so the copyright law protects fair uses. Since brief quotations in printed reviews are usually considered fair, Nation Enterprises should have won the case. Right?

Wrong.

The district court judge didn’t think The Nation’s article was a fair use. A divided panel (2-1 vote) of the 2^nd Circuit Court of Appeals did, so it reversed the decision. When the case went to the United States Supreme Court, it got another divided panel—and another reversal in a 6-3 decision saying the use was not fair. If the people who are paid to decide fair use issues can’t agree, what’s a writer to do?

Unfortunately, there is no bright-line test. Still, courts analyze four factors, and the Supreme Court discussed each of them in the Harper & Row case.

1. The purpose and character of the allegedly infringing use—in this case, of The Nation’s article. News reporting is normally a fair use, as are criticism, comment, teaching, scholarship, research, and anything that transforms the work. But normally doesn’t mean always. Here, the magazine’s motive was purely commercial, and its “commentary” was mostly a cut and paste of selections from the book. So even though the piece was written as a news article, this first factor counted against it.
2. The nature of the copyrighted work—meaning the nature of Ford’s autobiography. The more creative the work, the more it deserves protecting. Fiction deserves the greatest protection and most non-fiction the least, with creative non-fiction coming somewhere in between. Under normal circumstances, this factor may have been a wash. But Ford’s memoir had something else going for it. The Court said that whether material has been published is part of its nature, and unpublished material deserves greater protection than published material. Since the memoir was still unpublished when the article came out, The Nation lost on this factor, too.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Generally, the higher the percentage borrowed, the less likely it is to be a fair use. That means you can borrow more words from a book than from a poem. But it isn’t a mathematical test, and if you borrow the heart of the work, it doesn’t matter how small it is. The article used approximately 400 words from President Ford’s 200,000 word memoir, but those words were the juiciest parts of the manuscript. For that reason, this factor also counted against the magazine.
4. The effect upon the potential market for the copyrighted work. If the new work can be a substitute for the copyrighted work, it is probably not a fair use. People who read the unauthorized article no longer had a reason to buy Time to get the information, so The Nation's article was a substitute for the Time article. The economic loss was obvious, too: Time cancelled its exclusivity agreement and Ford’s publishers lost the money they would have been paid for it. Another strike against The Nation.

All four factors weighed against The Nation, so it’s no surprise that it lost the case. Still, three out of four isn’t an automatic loss, and one out of four isn’t an automatic win. It all depends on the facts.

So if The Nation’s article wasn’t a fair use, what is?

Tune in next month for the Case of the Disappearing Wind.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. 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.