Fair Use: How Much of an Author's Work Can Be Used Without Permission?

The short answer to that question is: there is no definitive answer. According to the United States Constitution and the Copyright Act, a limited monopoly is vested in authors at the time the work is created. The fair use doctrine is a complex exception to this monopoly and the most common legal issue arising in the publishing industry. The intent behind the fair use doctrine is to make reasonable public access available to copyrighted works for limited purposes. There are no specific guidelines regarding the number of words one can use of another’s copyrighted work.

The fair use doctrine is enumerated in Section 107 of the Copyright Act. This section of the law was created to strike a balance between the public’s need to know information and the author’s incentive to create literary works. Under Section 107, fair use of a copyrighted work without permission of the author can be allowed, with such use not resulting in the infringement of a copyrighted work, for purposes such as:

• Criticism and comment
• Parody and satire
• Scholarship and research
• News reporting
• Teaching

Understandably, authors and publishers lean toward a more restrictive opinion of the fair use doctrine; users of copyrighted material lean toward a more liberal view.

Section 107 of the Copyright Act lists the following four factors which must be considered in order to determine whether a particular use of a copyrighted work constitutes a fair use of that work.

1. The Purpose and Character of the Use — In evaluating the new work, courts look at whether it was created primarily as a commercial venture or if it was created for a noncommercial or educational purpose. A preference for fair use is often granted for works created for noncommercial or educational purposes, but every commercial use is not presumptively an unfair use. Next, courts ascertain whether the new work fits within one of the provisions specifically intended by the fair use provisions of the Copyright Act (criticism and comment; parody and satire; scholarship and research; news reporting; and teaching). Then courts look at whether the new work merely copies the original copyrighted work or whether it adds something new to the copyrighted work. When the new work alters the copyrighted work by adding new expression, meaning or message to the copyrighted work, this adds more support to the argument for fair use.

2. The Nature of the Copyrighted Work — This factor acknowledges that some works are more deserving of copyright protection than others. Courts must thus determine the scope of protection that should be afforded the copyrighted work. The scope of fair use is greater for an informational work—a work of facts, scholarship or news reporting—as opposed to a more creative work, such as a work of fiction. Courts look to see if a work is created to inform or educate rather than to entertain. Courts also consider whether a copyrighted work has been published or not. Courts have been far less willing to consider as fair use the unauthorized taking of an unpublished work than that of a published work.

3. The Amount and Substantiality of the Portion Used of the Copyrighted Work — Next courts look at the amount and substantiality of the copying in relation to the copyrighted work as a whole. The key here is whether the quality and value of the materials copied are reasonable in relation to the purpose of copying. There’s no definitive quantity of words test that’s utilized. Copying an entire copyrighted work may constitute a fair use under some circumstances; using a small portion of a copyrighted work may not qualify for fair use under other circumstances.

4. The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work — Courts consider the extent of harm to the market or potential market for the copyrighted work caused by the new work. This factor examines the potential as well as actual financial harm to the original copyrighted work, and to current and potential derivative works. The United States Supreme Court has stated this fair use factor is the most important element of determining what constitutes fair use. Thus, authors who desire to use another author’s copyrighted materials without permission must determine whether or not their utilization of the copyrighted work will likely harm either the present or potential market for that copyrighted work.

Courts have determined that unauthorized use is not fair use if the unauthorized use tends to weaken or negatively impact the potential sale of the original copyrighted work, interferes with the marketability of the work, or fulfills the demand for the original copyrighted work. However, this factor does not make the presumption that all commercial gain is automatically unfair use.

One can look at the criteria courts consider when determining whether an author’s use of another author’s copyrighted work is fair use. There are no absolute rules concerning fair use because each case is unique. Courts consider the factors enumerated above on a case-by-case basis. Authors who don’t wish to deal with potential fair use issues need to obtain permission for the portion(s) of copyrighted material they wish to use.

Note: This document is not legal advice and is not intended to be construed as such. Consult an attorney who works with publishing law for legal questions relating to your specific publishing issues and projects.

Audition by Michael Shurtleff - Opposites

The following is the fifth in a series of twelve articles based upon the twelve guideposts listed in Audition: Everything an Actor Needs to Know to Get the Part by Michael Shurtleff. The author was the casting director for many of David Merrick's Broadway productions. He also worked with Bob Fosse and Andrew Lloyd Webber. His book is known as the actor’s bible. If you take a college acting class, it will likely be required reading. While Shurtleff’s book is aimed at actors, his principles are beneficial to both writers and directors as well. This series is geared toward writers.

Opposites

Whatever a writer decides is the character’s motivation in a scene, the opposite of that motivation is also true and should be placed in the scene. The writer’s creation of opposites within a scene develops conflict, and therefore drama, and therefore interest within the reader. What is critical in developing opposites within a scene is the process of the character dealing with his pain, not the act of him resolving it.

The more extreme the opposites the writer selects for a scene, the more likely everything in between will be developed instinctively and naturally as the character comes to life between these extremes. There are opposites in every scene and some of them may be implied under the surface of the character, in the subtext. Writers should seek the extremes within their characters in every scene. The more each character can face the internal debate of I love you versus I could kill you with the other characters in a scene, the more riveting that scene will be. To successfully deal with the opposites within her characters, a writer must know each character’s strong feelings, prejudices and limitations. Confront your characters’ idiosyncrasies. If they remain unknown, the characters and the scenes can be victimized by them.