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Is ‘fair use’ fair?
August 11, 2005 | 10:13 pm
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By Sadi Ranson-Polizzotti
Sadi Ranson-Polizzotti, our e-book reviewer and a former editor at David R. Godine, continues her copyright series below. Stay tuned for a second podcast from her–with advice for self-publishers. The first was on e-books vs. p-books.
Few issues in copyright are hotter and trickier than fair use. Are fair use laws fair and, if so, to whom? Fair use is a slippery thing, with the Internet wreaking so many changes, so quickly. It’s simply too easy to launch into some hysterical or even calm discussion of fair use or any other copyright or e-book related matter without knowing the basics. I’m reminded of the family dinners of my youth; all too often the meat of our arguments fell short of the caliber of the meat on the table.
Here, though, instead of snacking just on government guidelines, I checked out copyright wisdom from major universities and others. Paper handouts, book excerpts, sequences of music, TV snippets–universities deal with a variety of media, including the mixed variety. Like the universities, I’ll break the topic of fair use into what the law says is acceptable. Then we can have our copyright debates–better-informed ones–over dessert.
Throughout the meal, please remember an essential rule of thumb: You’ll do well to hold your work to gourmet standards in real life–because, unfortunately, the copyright holders may do the same. And fees for breaking copyright law run high and can even, as noted in a previous piece, give you millions of dollars worth of indigestion.
So what is fair use? Here’s a definition from Licensing Digital Information: A Resource for Librarian (LIBLICENSE), based at the Yale University Library:
The right set forth in Section 107 of the United States Copyright Act, to use copyrighted materials for certain purposes, such as criticism, comment, news reporting, teaching, scholarship, and research.
LIBLICENSE goes on to say:
Section 107 sets out four factors to be considered in determining whether or not a particular use is fair: (1) the purpose and character of the use, including whether such use is of 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.
From a conference on for use attended by educators, librarians and content providers, here are some further guidelines. I’ve edited them down a fair amount and added text from other sources to clarify them because the issues are quite complicated. The general rule of thumb is no more than 10 percent or 30 seconds of the work.
Motion media: You can use 10 percent of the work or 3 minutes, whichever is less. This may be copied as part of a multimedia project or another work
Text: 10 percent or 1,000 words, whichever is less. This can be used in various multimedia projects. I believe this particular law also refers to fair use for journalistic purposes and experts for other projects such as books etc. They may need to reference another project or book, though note that attribution is generally required no matter how little or how much of the work you are using.
Moreover, to save yourself future hassles, you may wish to get permission from the copyright holder if he or she will grant it; do this whenever possible through the publisher. There may be a fee involved, not in fair use but in taking more than fair use–say, three poems instead of merely quoting part of a poem. Permissions often go through sub-rights agents. For more on this, look up publishing contracts. In the future I may use a standard publishing contract to illustrate how this works in the publishing world as a general template.
Music, lyrics, and music video: Up to 10 percent, but no more than 30 seconds from an individual piece of music, lyrics or music video may be used. You may be able to use more lyrics if you are for example, writing an article and wish to quote a whole song. Whether the music is part of another media project is irrelevant; and the same terms apply. Any alterations of the work may not change the basic melody of the work under the music fair use act or any of the above.
Photography and illustrations: Photographs are more complicated as are images and illustrations. The following guidelines are best to stick by.
The reproduction or incorporation of photographs and illustrations is more difficult to define with regard to fair use because fair use usually precludes the use of an entire work. Under these guidelines a photograph or illustration may be used in its entirety but no more than five images by an artist or photographer may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2. When using photographs and illustrations from a published collective work, not more than 10 percent or 15 images, whichever is less, may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2.
Back to the general concepts
For criticism, commentary, journalism reviews, jokes, nonprofit or educational purposes, fair use may apply. But be careful here; you still can’t copy an entire book, only sections that may be necessary for hand-outs and the like. If you want to use a work commercially, even for journalistic use or criticism, you still may be cooked.
No matter how “fair” you may feel it is, if you’re using the work for any commercial gain, even if it is non-financial commercial gain, you may imperil yourself. “Gain” can be defined in many ways and more; fair use is not just about financial gain. It is also about copyright and what is fair to the author. If the work is in whole or in large part available elsewhere, then profits are taken away from the author–as anyone can find the material elsewhere and even for free in some situations.
I can say with certainty only the following. As an author myself, if someone took a good half of my book or even sections of my published poetry greater than the defined several lines or percent, I would not be happy. Most authors I know feel the same way. Perhaps not all, but I can’t think of anyone I know, well-known or otherwise, who is willing to give over their work. Jut why should another benefit from hard years of toil on a particular piece and even take credit for it? Moreover, even if the users do not steal credit, their purposes may be overwhelmingly commercial and otherwise increase the risks of straying outside true fair use.
If nothing else, the use of my work may impinge on my reputation. I do not want my creative efforts used in a manner that I may not condone, and it is my right as an author to keep my work under my own protection for as long as is possible. Even publishers know this and revert the copyright to the author after seven years or so. If you want to buy the copyright from the author for a particular reason after that period of the time, one need only approach him or her. You may find the writer easier to deal with than the publishing house. This can vary from author to author and house to house.
What I don’t get is this: I understand that some of copyright-related restrictions may be harsh, but to blame the government doesn’t make sense to me. Yes, some or maybe even all of these are government guidelines but they hardly are there to protect the government or as one commentator noted, and understandably to some extent, The Man. To me, it seems the guidelines are there to protect people like you and me.
I wrote a piece called “What Price Free Content?” If you write for free, does that then mean that anyone has the right to take what you have written in whole and publish the entire piece? Syndication may be one issue; and if it is used to promote the work in some ways, then that is a different beast, but to use the work for a gain, commercial gain, is really the issue.
I cannot stress the issue of commercial gain enough.
Now let’s get to that thorny and relatively new beast, the Internet. Here are some more guidelines from CONFU: The Conference on Fair Use:
6.1. Caution in Downloading Material from the Internet
Educators and students are advised to exercise caution in using digital material downloaded from the Internet in producing their own educational multimedia projects, because there is a mix of works protected by copyright and works in the public domain on the network. Access to works on the Internet does not automatically mean that these can be reproduced and reused without permission or royalty payment and, furthermore, some copyrighted works may have been posted to the Internet without authorization of the copyright holder.
6.2 Attribution and Acknowledgement
Educators and students are reminded to credit the sources and display the copyright notice © and copyright ownership information if this is shown in the original source, for all works incorporated as part of the educational multimedia projects prepared by educators and students, including those prepared under fair use. Crediting the source must adequately identify the source of the work, giving a full bibliographic description where available (including author, title, publisher, and place and date of publication). The copyright ownership information includes the copyright notice (©, year of first publication and name of the copyright holder).
The credit and copyright notice information may be combined and shown in a separate section of the educational multimedia project (e.g. credit section) except for images incorporated into the project for the uses described in Section 3.2.3. In such cases, the copyright notice and the name of the creator of the image must be incorporated into the image when, and to the extent, such information is reasonably available; credit and copyright notice information is considered “incorporated” if it is attached to the image file and appears on the screen when the image is viewed. In those cases when displaying source credits and copyright ownership information on the screen with the image would be mutually exclusive with an instructional objective (e.g. during examinations in which the source credits and/or copyright information would be relevant to the examination questions), those images may be displayed without such information being simultaneously displayed on the screen. In such cases, this information should be linked to the image in a manner compatible with such instructional objectives.
Today, most work is protected under various Commercial Commons licenses, which means that the author decides how little or how much of his or her work may or may not be used. For example, some work may be used provided there is attribution of some kind. Other work may be used if there is attribution and you are further allowed to alter the work in some kind. Other work may be available for free but with no attribution; but in almost all cases, credit is due to the author and the copyright for the original work remains with the author and must be noted as such. You may, depending on the license, use the work in your own piece. But you must give credit where credit is due. Depending on how much of the work you has used, you can say the work is collaborative or with excerpts from or based on or any number of ways of phrasing. But you must give the copyright sign and the author or artist’s (define this broadly) name with the copyright symbol.
It’s understandable that one would simply give up at this point and say why bother since copyright law is so complicated and fair use may seem truly unfair. Penalties for breaking fair use are serious and harsh. According to a copyright-related site for the University of Texas system:
…the court can award up to $150,000 for each separate act of willful infringement. Willful infringement means that you knew you were infringing and you did it anyway. Ignorance of the law, though, is no excuse. If you don’t know that you are infringing, you still will be liable for damages – only the amount of the award will be affected. Then there are attorneys’ fees. There is one special provision of the law that allows a court to refuse to award any damages at all if it so chooses, even if the copying at issue was not a fair use. It is called the good faith fair use defense [17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use – as would likely be the case if you followed this Policy! If you qualify for this defense, it makes you a very poor prospect for a lawsuit. On the other hand, if you disregard sound advice about fair use, a court would be free to award the highest level of damages available. This makes someone who ignores policies a handsome target for a lawsuit…
Just like the aspect of copyright law about which I wrote about earlier this week, I think before we can have any meaningful discussion regarding fair use laws, we need to first know them fully and completely and study them. Without this, it is virtually impossible to have a discussion.
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Editor’s note: Remember that Sadi is giving her personal opinion as a seasoned publishing professional. She is not a lawyer, nor am I. Consult an appropriately licensed attorney if you need legal advice. Meanwhile Sadi invites comments–no flames, please–on her post. – David Rothman
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Comments:
A few simpler questions on this if you don’t mind, and I understand if you can’t give definite answers.
Perhaps you can continue at some point with a better explanation of just what a derivative work is, and when it does/doesn’t count as fair use. How is it that I can’t write a story about “hairy peter”, a young russian bear that wants to become a necromancer, even if I have no words in common with another famous book.
In fair use terms, if the reuse of a single photograph is considered fair use, why is it that some retail outlets refuse to make single copies of professionally made photographs?
In the fair use law quoted, attribution isn’t directly mentioned. Does this mean that I can take a single line of a few of your different poems ( keeping to 1 line from each to be well within fair use) and use them them as filenames for freely available but hideously grotesque images?
lastly, what is the copyright status on your informative post here, and what is fair use copying from it. Is this response a derivative work (or would it be if I quoted your post?)
Finally, and not intended as a flame, isn’t the government is the one providing protection for copyright and making the rules? Regardless of whether or not there are reasons for the rules (which are good to see mentioned in passing, and could be nice in a “why copyright” context), only the government has the power to adjust the laws to handle cultural changes. Who else can be blamed?
PS… is there a link to your “What price free content” paper?
these are all really good and important questions:
1 What price free content will be appearing on this site any day now, just as soon as David and i can manage, so that should be soon, I’ll give him a nudge on that one,
2. Photographs: photographs are protected differently because if you think of it reasonably, how can you take 10% of one photograph? A copyshop is rather ignorant in most of these matters though and you should, i believe, have every right to use an image PROVIDED it is for purposes of review/criticism/journalism or even educational purposes yet there are some resitrictions, again the !0% of the work rule applies, but as a journalist, i could use a whole photograph, but kinkos would still give me a hard time mostly out of ignorance of the law. no offense to kinkos or employees but we are entitled to use images from a film etc to promote it which is why they SEND them to use in the press packet.
2. Hairy Potter ~ great title. Not sure why you can’t do that. Titles for one are not copyrighted and this isn’t even the same title. is it a spinoff in any way of the same book or a parody? if so, then you are using more than 10% of the original to create your new original (does that make sense) so you can’t do that… you’d have to create entirely new characters and with different stories and back stories etc. in which case, i would see no problem at all with that and would even hire an attorney to argue this because that sounds too fascist to me, even and i’m all for fair use but this whole Harry Potter thing has gotten out of control.
3. Yes the government is the one providing the rules and thta is why i used government and university sites because we can’t have any resonable discussion about copyright or fairuse without first knowing the law. I disagree with a lot of things and i’ll be writing about those too but i felt it important to get the offical law out there so that we know whereof we speak… Does that make sense?
I hope so.
I tried to address most of your questions: send another note if i have left anything out, because likely i have and this is interesting to me as ever; being relatively new here i am trying to set out the law and get things from a govt. and legal perspective so we can then give our OWN POV based on that information…
hope that helps some. and thanks for reading. i realize that was long….
s.r.p.
A few other great links about fair use.
Stanford Guide to Fair Use ,
Essay: How I learned to love fair use
Summary of fair use cases .
BTW, I’ve read contradictory information about the 10%/30 seconds guideline for music. There is no hard and fast rule, and sometimes borrowing a few bars have been sufficient to trigger legal action.
1) Photographs/Whole work –
I found this out to my own surprise when a family member tried to make a copy of a “professional” photograph I’d sent. Looking at the criteria – it’s 1 picture of a larger set (10% rule), it’s non-commercial, and a copy of a prior photograph doesn’t reduce the chances people will hire him again.
However, the pictures are copyrighted by default — unless I got the guy to sign something saying they were works-for-hire. Of course, I have no idea where this fellow is, he doesn’t need to register his copyright (or even put on the back of the pictures).
I somehow cannot see this as a success of copyright – maybe for the photographer, if he could enforce people only buying new copies from him, but hardly for a customer. If this photographer had to pay for the privilege of keeping these copyrights, I think my pictures would somehow no longer be copyrighted by him.
2) Fiction using common themes, or sharing characters — again, if you do another in this series, I hope you touch on derivative works.
My point was that I could make a character SIMILAR to Harry Potter in many ways without using a single word of the original book. Yet, somehow, that’s derived and thus infringement?
By the same token, why isnt fiction with characters from commercial fiction considered fair use if its not distributed for profit, eg, the often poorly written slash stories found on the net that sites are routinely shut down for.
The criteria – non comerrcial, small portion of the work (just the characters, not even the settings or any of the words), and not likely to impact the market for the original. Yet its not fair use?
3) You didn’t touch on attribution — whether its required for fair use, or whether it’s just being polite (or part of the terms of unviersity publishing… )
Thanks again for your articles,
and I appreciate you answering my somewhat offbeat questions.
Nagle, as far as music, it seems that many small sections of music can be considered infringement. This produces incentives for record labels to pool their copyrights to avoid legal trouble, and ensure that a consistently high quality of music at reasonable prices results for the customer by averting the threat of rogue labels that might yield subpar material.
The latest is that the “What price free content?” piece from Sadi will appear next week. In addition Robert Nagle will offer his own thoughts. Thanks, meanwhile, to all for a fascinating discussion. Carry on! – David
interesting what robert said about conflicting information. surely that is true, i just got what ihave here from the government and several high ranking universities and felt i could trust it, but regardless ~ here’s the thing:
I dont agree with fair use laws all the time by any stretch and this aritlce was never that intention; merely laying out the law of the land. One thing i will say is that i think you are right about the photographs but everyone knows “images are trickier’ yet nobody has a solution. I think it woud depend on the kind of license the perosn had on the work: attribution, no attribution, share and share alike and so on… If you can’t track down the photographer then the government would say that is prob. your own issue, though i wouldn’t necessarily agree.
the question , or rather the thing i always do is use the Kantian rule… Would i want someone doing this with MY work and in most cases though not all, the answer is no unless i give persmission. That much seems fair to me ~~ other than that, would be lengthy and i’ll give my personal opinions on that ASAP… that should be an interesting piece.
cheers ~ i think you and i agree, but the law is just so complicated and muddled and nonsensical. It seems arbitrary to me and i hate that.
s.r.p.
If you are going to discuss fair use, academia, and Kinko’s then you should be very aware of Basic Books; et. al. vs. Kinko’s case (one of the most important fair use cases ever).
http://www.bc.edu/bc_org/avp/cas/comm/free_speech/basicbooks.html
Kinko’s employees may or may not be ignorant of fair use law, but the corporation already got nailed once and it appears they don’t intend for it to happen again.
http://promotetheprogress.com/archives/2004/08/kinkos_wont_hel.html
And one of the above commenters is right; there are NO hard and fast rules on how much of a work is too much. At the last library I worked at doing e-reserves we would allow absolutely no fiction to be scanned and uploaded. Not because it wasn’t fair use; because the copyright librarian did not feel qualified to determine what constituted the “heart’ of the piece. For nonfiction, we would allow one chapter or 10% whichever was less. If a book only had 4 equal length chapters there was a good possibility that that one chapter wasn’t going on e-reserves. This stance is rather conservative, but at $150k per infringement….
it’s not about Kinkos being ignorant so much as it is that i think it is very frustrating when you have only one photograph that is part of a greater body of work and wish to make a copy of this and need the photgrapher’s permission. i mean, what if i want to make a copy of one of Lewis Carroll’s photographs ~ obviously that has passed into pubic domain by now, or UT might hold some copyright over it, or it’s best to get their permission but still, when i went to Kinkos to make a copy of it, they wouldn’t let me. Same with the photo machine at Brooks pharmacy… how do i explain to someone there that this is fair use and not against the law without insulting them (which i do not wish to do… because that’s just not me). Further, the above are not MY reflections; they are the governments own rules and regs, so i can’t argue that yet… i will be, but here i wanted to lay down the law first. I’d take up your argument with the federal government… i can’t really help you on this, only to say that it’s difficult both for a company like Kinkos or any copy place and incredibly frustrating to anyone who does know the law…
that’s all… it was not a slam against Kinkos, merely an example. i hope this clarifies somewhat.
thanks and be well,
srp
[...] When I find a commercial site using one of my images, though, it really makes my hackles go up. I have no respect for any web designer who makes a commercial site for a company – especially a media company – and then steals images from a freelance writer’s web site. It is blatantly unprofessional, not to mention illegal. One radio station site I found recently apparently used one of my photographs of my ET all summer for a “win a Vespa contest.” This wasn’t fair use, this was blatantly stealing an image for commercial promotion on a for-profit site. After I wrote to the station manager and others there, they finally took down my copyrighted image – although none had the decency to write and apologize. [...]
hey girlbike – i know exactly what you mean! i write a great deal about Lewis Carroll and am doing a book project (well two) about him and his work and life. I cannot even begin to tell you how many people have used my work (in full) and even quoted me at length not only without my permission, but without attribution. i contacted all of those people and threatened etc etc…. now, since then, i am attributed. i even found myself in several bibliographies (attributed) and on Wikipedia as a source, so it’s worth the good fight.
it’s truly disgusting that people would do this not only wihtout attribution, but ignoring the rules of fair use and more, without paying you any sum of money. in the world of print, this would not happen as readily (tho it does happen) the rules are far stricter since it is plagerism. it also is on the Web but unfortunately since the Web is like the Wild Wild West, one has little recourse…
i totally understand your frustration and anger- my advice, contact those people and threaten legal action if need be…
thanks for chiming in with your comment… it’s a good one…
be well
s.r.p.
Fair Use Q-Can a teacher have her students recored themselves reading a book out loud, for the purpose of creating Podcasts for use in the classroom (example studnets could listen to their friends read a book aloud while they follow along in their own book?).
SR