Fair Use: What Authors Need to Know About Copyrighted Materials and Permissions

Note: This article offers writers some basic tenets of fair use doctrine; it is not intended, nor should it be construed, as legal advice.

On the path to a published book, writers invariably raise the question: Do I need permission to use this material to quote, cite, reproduce or reference copyrighted materials? The answer to this question is typically yes. There are, however, limited circumstances when the use of copyrighted materials might fall within the realm of so-called “fair use” doctrine.

The fair use doctrine is a legal principle that seeks to promote free expression by permitting the unlicensed use of copyright-protected works under certain circumstances without the copyright holder’s permission. Section 107 of the Copyright Act provides the statutory framework for determining whether a stated use might be deemed fair. Section 107 provides certain examples of uses that could potentially be deemed fair, such as “criticism, comment, news reporting, teaching, scholarship, and research.” Just because the use of copyrighted materials falls into one of these categories, however, doesn’t necessarily mean that use without permission would be deemed acceptable.

Unfortunately, questions of fair use are not cut and dried but are determined by courts on a case-by-case basis. In making fair use determinations, courts are guided by the following four factors delineated in Section 107:

  1. the purpose and character of the use, including whether the 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 first of these factors was relied on in the United States Supreme Court’s recent ruling in “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.” In this case, the court was asked to determine whether it was fair use for Andy Warhol to create silk-screen prints of Prince that were, at least in part, derivative of photographs Lynn Goldsmith took of the then-rising rock star in 1981 for Newsweek. One of Warhol’s derivative Prince prints was published in Vanity Fair magazine in 1984, however Goldsmith only found out about Warhol’s usage when one of the prints was used on the cover of a commemorative magazine in the wake of Prince’s death.

In deciding “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith,” the Supreme Court emphasized that both works were being used for largely the same purpose—to illustrate a story. Thus, Warhol’s use of Goldsmith’s photo of Prince in making his prints, without first obtaining permission and paying a licensing fee, infringed upon Goldsmith’s copyright. This ruling seems to have expanded copyright protections and has been, for the most part, applauded by those in the film, publishing and recording industries.

The third factor in Section 107, the amount and substantiality of the portion used, is another key factor relied on in an examination of whether the use of copyrighted materials without permission is fair. As a general rule, the larger the portion of the work borrowed or used, the less likely the use will be deemed fair. For this reason, quoting from shorter works, like poems and songs, without permission should be done with great caution. Even one line of a song or poem would likely be considered usage that requires permission. Song titles, however, are rarely copyrightable and typically can be used without permission.

It should be noted that even in a longer work like a full-length book, if the text used strikes at the heart of the larger work—even if it represents a small percentage of the larger work—courts will be less likely to deem this use fair. This has come up in the past when a magazine article has given away the key point of a nonfiction book, such that the public would no longer have any reason to buy the book.

If you’re concerned about source material quoted in your manuscript, there’s always the option of removing the material and finding another way to make your salient point without reliance on the copyrighted materials. There’s also the possibility of searching for source material already in the public domain that carries the same essential message of the copyrighted material.

Because the fair use doctrine is limited in application and was recently construed narrowly by the United States Supreme Court, when in doubt, it would be best to err on the side of obtaining permissions from copyright holders rather than risking litigation.

About Publish Her

Publish Her is a female-founded publisher dedicated to elevating the words, writing and stories of women. We are passionate about amplifying the voices of women of color, women with disabilities and members of the LGBTQ+ community. We aim to make publishing an attainable, exciting and collaborative process for all. Publish Her specializes in print-on-demand books, workbooks, journals, magazines and more.

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