When Copying Is OK -- the " Fair Use" Rule
Sooner or later, almost all writers quote or closely paraphrase what others have written. For example:
- Andy, putting together a newsletter on his home computer, reprints an editorial he likes from a daily newspaper.
- Phil, a biographer and historian, quotes from several unpublished letters and diaries written by his subject.
- Regina, a freelance writer, closely paraphrases two paragraphs from the Encyclopedia Britannica in an article she's writing.
- Sylvia, a poet, quotes a line from a poem by T.S. Eliot in one of her own poems.
- Donnie, a comedian, writes a parody of the famous song "Blue Moon" he performs in his comedy act.
Assuming the material quoted in these examples is protected by copyright, do Phil, Regina, Sylvia, Andy,and Donnie need permission from the author or other copyright owner to use it? It may surprise you tolearn that the answer is "not necessarily."
Under the "fair use" rule of copyright law, an author may make limited use of another author's workwithout asking permission. The fair use privilege is perhaps the most significant limitation on a copyrightowner's exclusive rights. If you write or publish, you need a basic understanding of what is and is not fairuse.
Uses that Are Generally Fair Uses
Subject to some general limitations discussed later in this article, the following types of uses are usuallydeemed fair uses:
- Criticism and comment -- for example, quoting or excerpting a work in a review or criticism for purposes of illustration or comment.
- News reporting -- for example, summarizing an address or article, with brief quotations, in a news report.
- Research and scholarship -- for example, quoting a short passage in a scholarly, scientific, or technical work for illustration or clarification of the author's observations.
- Nonprofit educational uses -- for example, photocopying of limited portions of written works by teachers for classroom use.
- Parody -- that is, a work that ridicules another, usually well-known, work by imitating it in a comic way.
In most other situations, copying is not legally a fair use. Without an author's permission, such a useviolates the author's copyright.
Violations often occur when the use is motivated primarily by a desire for commercial gain. The fact thata work is published primarily for private commercial gain weighs against a finding of fair use. Forexample, using the Bob Dylan line "You don't need a weatherman to know which way the wind blows" ina poem published in a small literary journal would probably be a fair use; using the same line in anadvertisement for raincoats probably would not be.
A commercial motive doesn't always disqualify someone from claiming a fair use. A use that benefits thepublic can qualify as a fair use, even if it makes money for the user.For example, a vacuum cleaner manufacturer was permitted in its advertising to quote from aConsumer Reports article comparing vacuum cleaners. Why? The ad significantly increased the number ofpeople exposed to the Consumers Union's evaluations and thereby disseminated helpful consumerinformation. The same rationale probably applies to the widespread practice of quoting from favorablereviews in advertisements for books, films, and plays.
Copying from Unpublished Materials
When it comes to fair use, unpublished works are inherently different from published works. Publishingan author's unpublished work before he or she has authorized it infringes on the author's right to decidewhen and whether the work will be made public. Some courts have held that fair use never applies tounpublished material.
As you might expect, publishers, authors' groups, biographers, and historians were highly critical of thisview. They got Congress to amend the fair use provision in the Copyright Act to make clear that the factthat a work is unpublished weighs against fair use, but is not determinative in and of itself. If the other fairuse factors favor fair use, it can be permissible to use part of an unpublished work without permission.This is particularly likely where the use benefits the public by furthering the fundamental purpose of thecopyright laws -- the advancement of human knowledge. For example, a court held that it was a fair usefor a biographer to use a modest amount of material from unpublished letters and journals by the authorRichard Wright. (Wright v. Warner Books Inc., 953 F.2d 731 (2d Cir. 1991).)
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