Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material

by Kit Logan via Flickr

by Kit Logan via Flickr

Note from Jane: This guest post is by attorney Bradlee Frazer has been updated to address reader questions and offer more information about fair use. Be sure to read his previous posts:

You might also want to reference my post: When Do You Need to Secure Permissions?


Authors create copyrights when they express their ideas into or onto a tangible medium. This means the author has the right to make copies of the work; the right to create derivative works; the right to distribute copies of the work; the right to publicly perform the work; the right to display the work; and, in the case of sound recordings, the right to perform the work by means of a digital audio transmission.

If you are the sole owner of the copyright to a work, you are the only one who may lawfully do these things or sell/license the rights to someone else to do these things. Conversely, doing one or more of these things without the copyright owner’s permission is called copyright infringement.

One defense against copyright infringement is fair use. Fair use allows you to use someone’s copyrighted work without permission. However, invoking fair use is not a straightforward matter.

The fair use doctrine is defined here. To bring your otherwise unauthorized use within the protection of the doctrine, there are two separate and important considerations. First, your use must be for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

This is the first prong. If your use falls into one of these categories, then you move to the second prong of the test. A court will consider the following four factors to determine if your use is a fair use:

  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 (emphasis added)
  4. the effect of the use upon the potential market for or value of the copyrighted work.

If your use falls into one of the enumerated categories AND you are able to prevail factually on at least two of the four second-prong factors, you might succeed in proving that your use is fair and thus not copyright infringement.

Here’s an example.

Let’s say you are writing a novel for commercial publication and you wish to reproduce the lyrics to the song “Little Red Corvette” by Prince in the book. You are not reproducing the sheet music, and you are not including a sound recording of the song with the book. You are merely causing the literal words of the lyric to appear as prose within your book. Here is the analysis:

  1. Do you own the copyright to the work? No. The author and copyright claimant of these song lyrics are Prince Rogers Nelson (Prince’s real name).
  2. Do you have Prince’s permission? No.
  3. Is your use for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”? No. You are writing a novel.
  4. Is the purpose and character of the use commercial or noncommercial? Commercial.
  5. What is the nature of the underlying work you are reproducing? Is it highly creative and subject to strong copyright protection, or is it less creative or perhaps even not subject to copyright protection at all? This is a highly creative work that is entitled to strong copyright protection.
  6. Did you use the whole lyric or just a few words? You used the whole lyric.
  7. Will your use of the lyric cause Prince to lose money, e.g., people will not download the song on iTunes anymore? No, your use will likely not cause Prince to lose money.

Of all the fair use factors, you would only perhaps win on one of them, the last one, so if Prince sued you, you would likely not be able to successfully invoke the fair use defense. Other defenses may be available, but probably not fair use.

In each case where you wish to use someone else’s work, and wish to invoke the fair use defense, you should ask those seven questions.

Not all situations call for invocation of the fair use defense. For example, if you only want to use the title of another work, that’s not copyright infringement because titles and short phrases (fewer than ten words or so) are not subject to copyright protection. Similarly, facts are not protected by copyright, and you may use plain, unadorned, uncreative lists of facts without copyright infringement liability. If someone had, for example, prepared an alphabetical list of the fifty states, that list of facts (state names) is not protected under copyright law.

What about using quotations—is it okay?

A question like “is it OK” is hard for a lawyer to answer because in truth, the only way to know for sure if something is “OK” is by getting sued and then winning that lawsuit. Then, the judge has told you, in essence, “Yes, your behavior is OK.”

A better way to ask the question is: “If I get sued for quoting another book without seeking permission, what defenses may I posit in the lawsuit to increase the chances I will not lose?”

Answering that question is possible, and the answer is that if you copy ten or fewer words from another book you may likely be able to defend yourself under the doctrine that titles and short phrases are not subject to copyright protection. If you use more than 10 or 15 words, then you should ask those 7 questions above to determine how and if you might be able to invoke fair use as a defense if you get sued for copyright infringement. This is why I tell clients to always seek permission, and to remember that attribution alone is not permission.

The big question: How risk averse are you?

Anytime you use any third-party content without permission (including quotes), you run the risk of getting sued.  No amount of opining by me or another lawyer can change that fact. No one has to get permission from a judge or lawyer to sue you when you use their “stuff.”  

Remember, under U.S. law:

  • Fair use is just and only a defense you assert after you’ve been sued.
  • Public domain is just and only a defense you use after you’ve been sued.
  • An argument that the work you copied is not copyrightable subject matter because its total length is too short to merit copyright protection (10-15 total words or less) is just and only a defense you use after you’ve been sued.

The arguments about the length of the quotes all fall within the realm of one of more of these defenses, but that’s all they are—defenses you use after you’ve been sued. 

So, again, to my point: how risk averse are you?  If you are very risk averse, you should seek and obtain permission or not use the quotes since you have no control over if they will sue you.  Yes, you may have one or more defenses in that lawsuit, but do you want to get sued at all?

If you are very risk tolerant, you may wish to use the quotes hoping they will never catch you and never sue you, and if they do sue, you trust that you can assert one or more of these defenses. 

Also remember that attribution is not permission and does not create a defense. Also remember that celebrities (even dead ones) can sue you for something called “a right of publicity violation” in addition to suing you for copyright infringement. 

Not saying you can’t.  Also not saying you can. No one knows if you can until you get sued—and win.

Can I quote a famous person if they’ve said something publicly?

Remember the definition of copyright. Answering this question turns on whether someone owns a copyright in the spoken words, i.e., have the words been reduced to a tangible medium by someone? The fact that they’ve spoken the words publicly has no bearing on the analysis. Factors to keep in mind:

  • If the quote is very old, say, more than 100 years old, even if it is in a tangible medium, it is likely that the copyright in that work has expired and that the quote has now entered the public domain.
  • If you’re using the quote as a means to sell your book, you could get sued for a right of publicity violation. (However, it is typically defensible to use someone else’s name or likeness for news, information, and public-interest purposes, but that doesn’t always rule out a violation.) Right of publicity laws vary in each of the fifty states (and publishing something online is like publishing in all states), so you have to be careful.

The right of publicity can apply to people who are dead—it varies from state to state. In general, the right of publicity survives the person’s death, in some states for as long as 75 years after they die. Some states may even be longer!

What if I’m quoting or referencing facts?

Plain, unadorned facts are not copyrightable subject matter. For example, if Sue writes down a list of the fifty U.S. states and places that list in her book, I may copy that list exactly from her book and my defense, if she sued me, would be that such a list is an unadorned list of facts and thus are not subject to copyright protection. If, however, Sally, made the list creative and made a photo collage out of it or something, copying the collage might be copyright infringement, but the underlying facts themselves are still not protected by copyright.

What about quoting, paraphrasing, or linking to online work?

There are three issues here: quoting, paraphrasing, and linking, but there is nothing fundamentally different about online works that changes the analysis. Some human being wrote the words that appear online, and that human being (or her employer or her assignee) owns a copyright in the work. If someone copies and reproduces most or all of those words somewhere else online (a) without permission; (b) without being able to invoke the Fair Use Defense; (c) without being able to argue that the original words were not copyrightable subject matter; or (d) without invoking some other defense, then that is copyright infringement.

For example, the Huffington Post can argue that it is a news outlet, and news outlets get greater latitude to argue the Fair Use Defense. Also, you can summarize another’s works without committing copyright infringement if you do not literally replicate the exact words and all you do is convey the same underlying ideas.

Lastly, in most cases you may link to another’s work, as long as you do not literally copy and reproduce all or most of the actual words at the linked story on your site.

What about recipes from cookbooks?

To the extent the recipe is just a list of facts (amounts and ingredients), it is not subject to copyright protection. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable.

What about using quotes from TV, film, or advertisements?

Television, film, and advertisements are all copyrightable subject matter, and copying from them without permission is subject to the same analysis.


Please comment or e-mail me at bfrazer@hawleytroxell.com if you have any questions.


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Posted in Guest Post, Publishing Industry and tagged , , , .

Brad Frazer

Bradlee Frazer is an author, speaker, blogger and Boise, Idaho native. He loves the blues; Ray Bradbury short stories; and his wife, daughter and dogs. Bradlee’s nonfiction has been published in national legal treatises on matters of Internet and intellectual property law, and he is a frequent speaker on those topics. His works of fiction include the short story “Occam’s Razor,” which was published in an online literary journal, and he has co-authored two screenplays, Dangerous Imagination and Spirit of the Lake. He has written scripts for sketch comedy, radio productions and short films, and in college Bradlee was a film critic who wrote and hosted a weekly half-hour television program called “Premiere!” His first novel, The Cure, was recently published by NYC-based Diversion Books. Click here to find out more. And yes, he has registered his copyright.

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[…] Today’s guest post is by attorney Bradlee Frazer, who has been a guest here several times before.  […]

Anonymous
Anonymous
3 years 10 days ago

How does copyright influences writing about topics that are based on personal thoughts on sites like Blogger and Tumblr. I’ve read a lot of posts that inspire a line in my WIP. They are my ideas, but they are rooted (sometimes even using a similar key comparison) from a comment of someone else’s. Does that still qualify under copyright?

Jane Friedman
3 years 9 days ago

If it’s your original words and work, you don’t have much to worry about. You can be inspired by other work without infringing on it.

Bradlee Frazer
3 years 9 days ago

Jane is correct. Copyright law protects against copying literal words and pictures and other types of expression. Underlying ideas are not protected by copyright.

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[…] Is It Fair Use? 7 Questions to Ask Before You Use Copyrighted Material by lawyer Brad Frazer […]

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[…] Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material […]

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[…] Today’s guest post is by copyright lawyer Brad Frazer. He has written two other posts for this site: Trademark Is Not a Verb and Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material. […]

Linda Paul
Linda Paul
3 years 9 days ago

There must be a tremendous amount of copyright infringement in the Blogosphere, based upon this information. I always wonder about downloading images off some aggregate site and then captioning the source, which is often nothing more than a website. I gather that would be an indefensible offense. Ack.

Jane Friedman
3 years 9 days ago

There is a lot of infringement, yes. But there’s also a culture of sharing, which is codified under Creative Commons, a growing alternative to copyright. More here: http://creativecommons.org/

Stephen del Mar
Stephen del Mar
3 years 9 days ago

So how is most fan fiction not a copyright infringement or some kind of intellectual property infringement? Just wondering, not intending to stir anything up.

Jane Friedman
3 years 9 days ago

It is an infringement. Many authors simply choose to look the other way.

Amazon recently launched an initiative to bring fan fiction to market in a way that’s legal: http://www.amazon.com/gp/feature.html?ie=UTF8&docId=1001197421

Shirley Showalter
3 years 9 days ago

Very helpful post. Thanks.

Bradlee Frazer
3 years 9 days ago

Thank you, Shirley.

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[…] Fair use allows you to use someone’s copyrighted work without permission. However, invoking fair use is not a straightforward matter.  […]

Victoria_Noe
Victoria_Noe
3 years 9 days ago
I write nonfiction, and I request permission for everything I quote, even one sentence. Generally speaking, the quotes are used are to illustrate a point. I make a statement, then I use that quote to substantiate it. My experience in obtaining quotes is varied. I had a run-around from one publisher last year: filled out the form online, waiting 8 weeks to followup (as instructed). “Oh, you sent it to the wrong department; start over.” Repeat. Same answer. Submitted to a third department; no response to followup, so after 5 months, I gave up and didn’t use the quote. It… Read more »
Guest
Guest
3 years 9 days ago

Thank you for your comments, Vicki. I ask my clients the same thing.

Bradlee Frazer
3 years 9 days ago

Thank you for your comments, Viki. I ask my clients the same thing.

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[…] Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material, by Brad Frazer – “Authors create copyrights when they express their ideas into or onto […]

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[…] In addition to Zeebra’s information, here is another link about Fair Use and Creative Commons. https://janefriedman.com/2013/07/15/the-fair-use-doctrine/ […]

CityLA
CityLA
3 years 7 days ago

i want to use a song lyrics as an online store name. is this infringement?

Bradlee Frazer
3 years 6 days ago
It might be ~copyright~ infringement if you use several words from the lyric. Even if you only use a few words to avoid a copyright problem, it might be ~trademark~ infringement (a different problem entirely) if that part of the lyric you select has independent life as a trademark. For example, assume you select the phrase “My Cinnamon Girl” as your store name, borrowing those words from the lyric of the Neil Young song. That would likely not be copyright infringement, but if someone has trademark rights in “My Cinnamon Girl” or “Cinnamon Girl” in a related line of goods… Read more »
Louisa Raymond
Louisa Raymond
3 years 6 days ago

Is it illegal to name a store or business after song lyrics? Do you need permission?

Bradlee Frazer
3 years 6 days ago

See my reply to CityLA.

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[…] Attorney Brad Frazer clarifies the often-misunderstood Fair Use doctrine by giving us 7 questions to ask to determine if it is fair use. […]

Kelly Ramsdell Fineman
Kelly Ramsdell Fineman
3 years 5 days ago

This post is absolutely brilliant, and makes the subject very accessible. Well done and thank you!

Bradlee Frazer
3 years 3 days ago

Thank you, Kelly!

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[…] Frazer: Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material. Excerpt: “Authors create copyrights when they express their ideas into or onto a tangible […]

adrienne
adrienne
3 years 4 days ago
I love Ray Bradbury too and I just gave my son R is for Rocket to read :). My question is for a thesis in neuro-psychology, Can comic strips be used in research without copyright permission if the comic strips themselves will not be made public, with the exception of 40 participants that view the comic strips? The images will be on a PC but they will only be on one in the laboratory and not available online. Does this work under the copyright act? The number of comic strips from any particular creator would not amount to more than… Read more »
Bradlee Frazer
3 years 3 days ago
Adrienne, Glad you are a Ray Bradbury fan. R is for Rocket is one of the first of his I read! A better way to ask the question is: “If I use the comic strips and get sued, will I have any defenses?” The ostensible owner of the copyright has denied your request for permission, so that tells me that proceeding here is risky, at best, subject to your subsequent request. If you apply the seven questions, do four or more go your way? If so, you may have a fair use defense if you get sued. The fact that… Read more »
adrienne
adrienne
3 years 3 days ago

Thank you for the reply!! For the 7 questions, 3, 4, 6 and 7 seem to go my way. I was under the impression that if something is for research purposes, is not for profit, and would not affect the author’s profit at all that it falls under the fair use. I really hope the publisher reads the more detailed letter. Plus I think the cartoonist would really enjoy its use considering it has to do with neuro-science. Anything else i can do?
Thanks again!

adrienne
adrienne
3 years 3 days ago

also, the number of comic strips used represent less than 10% of the creators total work (I think, in this case, number 5).

Bradlee Frazer
3 years 2 days ago

A use is only a “fair use” when a judge or jury determines definitively that it is after you posit it as a defense when you get sued. Your best defense is made if you can prove that four or more of the factors go your way, but it is all academic until you get sued and win. Remember: all we are doing is trying to create a defense, proactively.

adrienne
adrienne
3 years 1 day ago

Thank you for your help! 🙂

Joseph Harris
Joseph Harris
2 years 9 months ago

Can I just add to Bradlee’s comments here. He’s also said this elsewhere. Publication and visibility have nothing to do with the copyright of content. From the moment an idea is made concrete, that concrete expression is copyright.

Until 1989 the US did not follow Berne or the British developments of copyright [catch up was actually from around 1960 to 1989]. Elsewhere the automatic copyright has applied. Many in the US (I’ve been …er… discussing this online for a dozen years) recall the previous US systems which placed emphasis on publication.

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[…] In my work as a freelance editor, I often work on manuscripts that contain verbatim quotes and/or referenced quotes from other sources.  My editorial comment in these cases is usually along the line of “You might need permission for this quotation.” I’m not an attorney, so I can’t say with absolute certainty that a specific quote is or is not fair use, but I’m sharing this excellent article about the use of copyrighted material from Jane Friedman’s blog that might help you answer that question for your own book. You might want to bookmark this one: Is It Fair Use? 7 Questions… Read more »
Candace Johnson
Candace Johnson
3 years 3 days ago

Fantastic post, and reblogged at http://wp.me/p2IvJd-vl. This information will be invaluable when writers ask why they can’t include song lyrics or a complete poem in their work without written permission.

Bradlee Frazer
3 years 3 days ago

I appreciate your feedback and your reblogging the post, Candace.
Best, with thanks,

Brad

Mario
Mario
3 years 3 days ago

What about publishing antique maps from the 1800’s in a printed, non-fiction book for commercial use and sale? The maps are out of the copyright date and in the public domain, correct?

Bradlee Frazer
3 years 2 days ago

Mario,

Determining whether something is in the public domain or not is an involved and scary process, particularly if you guess wrong, get sued, and lose. My favorite example is the song “Happy Birthday to You,” which I bet most people would assume is in the public domain when in fact it is still under copyright in the U.S. and you must pay royalties to use it! But, if you are willing to undertake the quest, I recommend that your start here: http://publicdomain.okfn.org/calculators/flowcharts/ and http://copyright.cornell.edu/resources/publicdomain.cfm.

Best,
Brad

Joseph Harris
Joseph Harris
2 years 9 months ago
You don’t mind if I add that something from 1800 is very unlikely to be in copyright :-). But, and it is the big but I think Bradlee is referring to, it depends whether there is any copyright in the map file you are using. Or, if it is in a print book that is still in copyright. This is one where there is variation. In the US straight photographs and scans—where there is little or no skill or image improvement—can be used; in the UK the photographer does have copyright in his photographed copy of an image otherwise out… Read more »
Jo
Jo
3 years 3 days ago

In my book to be published on 9 August, one of my characters is obsessed with celebrity chefs. Two other characters mention the names of three actual tv chefs in the book. Is this allowed?

Bradlee Frazer
3 years 2 days ago
A better way to ask the question is this: if you use the names of real celebrity chefs in the book and you have not obtained talent releases from them and they sue you for violating their right of publicity, will you have a defense? This is a very involved analysis, and this is why I tell my author clients to either get talent releases from all real, identifiable people they name in their books, or change the names to protect the innocent. Remember that right of publicity law varies from state to state. For example, take a look at… Read more »
Guest
Guest
3 years 2 days ago

Just saw this and thought I would post link as it deals with right of publicity–timely and relevant. http://www.tmz.com/2013/07/22/harlem-shake-dj-baauer-lawsuit-photo/

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[…] Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material […]

Keith Skinner
Keith Skinner
3 years 3 days ago
Brad, I read this last week and really appreciate the clarity with which you presented the material. But something has been bothering me since that first reading. Isn’t there a lot of gray area around fair use regarding reinterpretation of existing work (not clear how reinterpretation and derivation differ) and adding value to existing work by exposing it to a wider market than it would otherwise reach? I seem to remember such examples being used in other fair use discussions. Lines from a poem (more than 10 words but not the entire poem), for instance, would reach a different audience… Read more »
Bradlee Frazer
3 years 2 days ago

Thanks, Keith. The phrase you are looking for is “transformative.” Yes, the more transformative a work is, the more likely it is that a judge will find the use to be a fair use. This is a good summary: http://fairuse.stanford.edu/overview/fair-use/four-factors/#the_transformative_factor_the_purpose_and_character_of_your_use.

In the right of publicity realm, transformation is also an issue. See http://www.rkmc.com/~/media/A6974642423042EDA0695C61BE471AF5.ashx.

Bradlee Frazer
3 years 2 days ago

And yes, my initial post included bright line tests for a very general audience. Each case is, of course, fact-specific and subject to the judge’s whims, as you observe. This is why it is so important to proactively think of what your defenses will be BEFORE you use the materials or name.

Paulette Alden
Paulette Alden
3 years 1 day ago
Dear Mr. Frazer: Thanks very much for this helpful, clear post (and thanks, Jane). I’m self-publishing a collection of short stories, one of which uses a few lyrics (no more than ten words in any instance) from the song “Unforgettable.” I emailed Bourne Music for copyright permission, and they want $500.00 for up to 1,000 copies each of the ebook or POD, and if I sell more, the permission right to be renegotiated. I’m confused in your article when you say “short phrases (fewer than ten words or so) are not subject to copyright protection.” Does this not apply to… Read more »
Bradlee Frazer
3 years 1 day ago
Thank you, Paulette. I am pleased that this has been helpful. In the law, we use the phrase, “bright line test.” It means that there are clear, universally applicable standards that govern the issue. Here, unfortunately, there are no bright line tests when it comes to fair use. The only and final arbiter is the judge and jury after you’ve been sued. So, all we can do as lawyers is try to anticipate problems and create defenses. That’s where the “ten words or less” thing comes in (which does apply to lyrics). That is not a bright line test. It… Read more »
Paulette Alden
3 years 1 day ago
You’re wonderful to answer my question so quickly and thoughtfully. I actually have “in house” counsel — my husband is a lawyer and he’s going to look into some cases on this, to satisfy our curiosity — but you’re the expert. It would be fascinating to see what would happen if I did get sued! But as you know–curiosity killed the cat . . . Thank you so much for being so great to me and others swimming in the sea of copyright questions. It’s wonderful to deal with a lawyer who is a writer. Congratulations on THE CURE —… Read more »
Bradlee Frazer
3 years 21 hours ago

Thank you, Paulette! Please let me know your husband’s findings–I’d be interested to compare notes. And, please enjoy THE CURE! Your support is appreciated.

Paulette Alden
3 years 17 hours ago
I just ordered THE CURE from Amazon! I hope everyone who benefits from your free legal advice here will order it and write a review! My husband concurs with you. I’m going to write Bourne and ask for a reduced fee. I don’t know that I’ll get very far with that but I will try. I’m not exactly Stephen King or Random Penguin! If that doesn’t work, I’ll have to eliminate the lyrics. I think I can just use the title of the song, “Unforgettable,” and say that Nat King Cole’s voice plays in her head (the main character’s). Rats!… Read more »
Bradlee Frazer
3 years 15 hours ago

This is why I love to support the writer community with posts like this! Again, thanks Paulette.

Paulette Alden
2 years 11 months ago

Just to follow up, Bradlee, I decided not to ask for a reduced fee and to eliminate the lyrics and just use the title of the song. That seemed like the best thing to do. I appreciated your help on this matter!

Rich Gallagher
Rich Gallagher
3 years 22 hours ago

Great article. To chime in on Paulette’s question above – the safest assumption is unfortunately that there is *no* fair use exemption for song lyrics, because of how aggressively that industry treats any usage. This article from a UK novelist lays things out pretty clearly: http://www.guardian.co.uk/books/2010/may/01/blake-morrison-lyrics-copyright. Good luck!

Paulette Alden
3 years 17 hours ago

Rich, thanks for supplying this link. I read the piece with bated breath! Wowsers. I have a feeling Bourne will not give me a break. At least I’m braced . . . Very helpful to read Morrison’s painful experience.

Roger
Roger
2 years 11 months ago

Great articles, thanks.

By the way, could I create a mobile application (for Google Play) called “Know Your Galaxy S4”? This would be a guide to Samsung’s mobile phone, but I would not use any copyrighted images.

Thanks!

Roger
Roger
2 years 11 months ago

Oh, by the way, the app would be free, but I would show ads in it, which would make money for me. Thanks.

Bradlee Frazer
2 years 11 months ago

Thanks, Roger. This is an involved enough question that you may wish to email me.
Brad

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[…] The Fair Use Doctrine: Guidelines from a Copyright Lawyer by Brad Fraser […]

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[…] Frazer (he’s an attorney) does a guest post at Jane Friedman’s blog, “Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material“, that provides a checklist of sorts. This is another one you want to […]

Cari Morgan
Cari Morgan
2 years 11 months ago

This answers the question I was asking myself, and another I didn’t know about. Thanks for the terrific post!

Kerry Gans
Kerry Gans
2 years 11 months ago
Hi, Brad – Great article, as usual. I’ve been trying to find the answer to my particular situation, and it never seems to be covered in any Fair Use posts I see. I have a short story in which a KindedrGlo angel plays a vital (and heroic) part. I would like to use an image of the KinderGlo angel as my cover art. I took the photo myself, so the image copyright is not an issue. I just do not know if I am allowed to use a trademarked product produced by someone else in a cover image (since that… Read more »
Kerry Gans
Kerry Gans
2 years 11 months ago

Thanks, Brad! I do understand the sculpture copyright issue. I will likely ask the company for permission–that’s what I thought I would need to do in the first place. But then others were telling me I didn’t need to, and I kind of just wanted to clear it up definitively so we all knew the answer. Because I think as more authors are doing their own artwork, this will become an issue for many of them. And I will check out that other link, too.

Gary L.
Gary L.
2 years 11 months ago

Hi Brad,

Thank you for writing this – it’s very clear and informative!

One question that I remain slightly unsure about:

I’m creating a smartphone app that has hundreds of cards to help people write. The cards include writing ideas, and some have short quotes from famous writers. Some of those quotes are from recently published books.

I’ll be charging for this app, so it will be a commercial venture. Should I think twice about including these quotes? Should I stick to Socrates and leave out Stephen King? 😉

Thank you again for your insight and time!

Gary L.
Gary L.
2 years 11 months ago

Thank you so much, Brad! You’ve helped me make my decision to exclusively use public domain quotes. I really appreciate your help and prompt response!

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Brooke
Brooke
2 years 10 months ago

I have been researching for a fiction novel I was wanting to write and came across some articles and interviews on some news websites about a bacteria that is becoming endemic in hospitals around America. Could I cite my inspiration for the book in the preface or would that fall under copyright infringement?

Nokkelanimimerkki
Nokkelanimimerkki
2 years 9 months ago

I’d like to know if you can copyright a product in which you use ‘Fair use’ material?

Jane Friedman
2 years 9 months ago

Yes.

Bradlee Frazer
2 years 9 months ago

Jane is, of course, correct. Your claim of copyright will only extend to that new and sufficiently original content you have added to the material you are using under the fair use doctrine.

grant9896
grant9896
2 years 9 months ago

Would it be considered fair use to put a line from a song on a commercial product such as a decorative sign? For example: If you put “where you invest you love, you invest your life” (lyrics from a Mumford and Sons song) on a decorative sign and sold it on etsy, would you be liable?

Bradlee Frazer
2 years 9 months ago

Thanks for commenting. The better question is: if you use that line in a decorative sign and get sued for copyright infringement, could you successfully invoke the fair use doctrine as a defense? It depends on the outcome of the seven questions in the article. Once you run your facts through the seven questions above, let me know if you still are unclear on if you might have a fair use defense.

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[…] Since I figured I had this self-publishing thing knocked, I decided I’d publish a collection of my short stories, entitled Unforgettable.  I was merrily steaming along toward this goal, until I read a guest post this summer on Jane Friedman’s wonderful website (“Writing, Reading and Publishing in the Digital Age”) about copyright infringement, by Brad Frazer. […]

Joseph Harris
Joseph Harris
2 years 9 months ago

Jane,

Creative Commons is *not* an alternative to copyright. It is a set of licences which give particular permissions. Its intent is co-operation, and it is based on Geek culture. Lessig, the creator of CC, is strongly aware of copyright. And now, as you may know, sits on a committee of WIPO.

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[…] Fair use allows you to use someone's copyrighted work without permission. However, invoking fair use is not a straightforward matter.  […]

Winter
Winter
2 years 8 months ago

Does the copyright law cover those quotations whose authors are anonymous? Thank you.

Jane Friedman
2 years 8 months ago

If the quote is *really* anonymous, no.

Winter
Winter
2 years 8 months ago

I contacted an owner of a particular blog and she gave me a link from where she got it but the website had been down for months. Thanks

Treasa
Treasa
2 years 7 months ago
Recently I uploaded an ebook to Amazon. I got through all the hoops but later received an email to say: During a review of your KDP submission(s), we found content in your book is freely available on the web. To confirm you have publishing rights to this content, and that you control where you distribute the book(s), please take one of the following actions: 1. Confirm rights 2. Remove content I checked everything out and removed content. I subsequently wrote to all those I’d quoted and requested permission to do so. So far all have responded positively and one interesting… Read more »
Susan Raber
2 years 7 months ago

I create study guides for some of the books my kids read in our homeschool. I’ve been asked to make some of these study guides available to others. When I look at the questions above, I just can’t seem to nail down whether or not literature (fiction and nonfiction) study guides fall under fair use, especially if I were to charge for printing or producing an ebook version. Can you help me fall off one side or other of this fence?

Jane Friedman
2 years 7 months ago

It doesn’t matter if your work is a study guide or not. The difficult question is whether each and every excerpt or quote used (within the study guide) would be considered fair use. If not, you need to ask permission for each work quoted that might extend beyond fair use. This post might be helpful if you haven’t seen it: https://janefriedman.com/2012/01/23/permissions/

Susan Raber
2 years 7 months ago

Thanks for the link. The unique aspect of study guides is that they ask questions about the story, but usually do not quote the text. A study guide does just about everything BUT quote from the book. So if I’m not quoting, just asking questions about the story (setting, characterization, plot, etc) then I am assuming I don’t need to worry about fair use.

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[…] Frazer on Jane Friedman Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material “One defense against copyright infringement is fair use. Fair use allows you to use […]

x_chemicalism_x
x_chemicalism_x
2 years 6 months ago

Hi there.
I make images (photographs) using lyrics by a well-known artist for a social networking site. I do so as a fan of the artist, and do not, in any way, profit from my work. I have recently come across my work on someone else’s website claiming it to be theirs. Where do I sit with copyright and fair-use? Can I protect my images with copyright? Can I claim fair-use on the artist’s lyrics?

Thanks =]

Mike Kehler
Mike Kehler
2 years 6 months ago

Hi,
What if I wanted to use short quotes from movies to sell as vinyl stickers. Quotes like “The Force is strong with him” or “I’ll be back” etc. Is this cause for being sued for something or does this fall under the short quote (less than 10 words) clause mentioned above?

Kay
Kay
2 years 6 months ago
I have a question about Fair Use, more in the realm of ethics, actually. Several of my friends on DeviantArt have been plagued by someone coming around and taking their work to put in his collages. He would come to one of their art pages, say “I like this, I may use it in one of my own artworks.” When his victims politely asked him not to, he would basically say “oh, I’m not asking permission. I’m going to do it anyway because Fair Use lets me.” He’s spent the better part of the last three weeks laughing at anyone… Read more »
Jane Friedman
2 years 6 months ago
Much depends on the license the artists are using on DeviantArt. If they’re using a Creative Commons license that allows for re-use or modification, then they can’t legally stop him. If the artists are posting their work and not using a Creative Commons license (just putting the traditional copyright notice on their work), legally, they can go after this person; it is not considered fair use to modify someone else’s artwork without permission. (There are some gray areas here, but that’s what the courts are for.) It sounds like someone should report this user to the admins at Deviant Art… Read more »
Trent Douglass
Trent Douglass
2 years 6 months ago

I’m making a game server, I have an option in-game where you would be paying real money for a donation, one of the rewards for donating are cars in game that are real cars made by real car manufacturers am I violating the law in anyway by making these cars cost real money?

David
David
2 years 4 months ago
Hi, I find this article very enlightening, but I am at a point where I want to reference some studies findings in a work, which is not to be sold, but to be included in my design portfolio (which still counts towards commercial use I think). There is a PDF which has several information about communication studies and facts. In the end it has the name and authors from where that information was referenced from. Do I ask the publisher for permission to reference the information in that PDF? Or do I ask the authors they quoted? Do I ask… Read more »
Jane Friedman
2 years 4 months ago

You do not need permission to refer to information from other works. If you’ve quoted/excerpted the material extensively (beyond fair use), and made it publicly available, then you may need to ask for permission.

David
David
2 years 4 months ago
Jane, firstly thank you very much for your reply. The type of text I want to write (or record as a voice-over) is something like this: “Studies show that x percentage of people behave a certain way.”. I understand I can find these types of sentences everywhere online, but I haven’t found a statement which clearly states it’s ok and fair to do. I also have the intention of recreating a graphical diagram in a more visually appealing way. I would naturally refer that the information from the graphic comes from “another study that shows …”, but since I’m recreating… Read more »
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