Fair Use

popmuze · Apr 17, 2011

This is driving me crazy. Let's say you're allowed to use 200 words from a book before you need to get permission from the publisher (which you are). But let's also say 100 of those words are a quote from someone else, or from a public document. Do I have to say: "As John Smith was quoted in John Doe's book ".........." Or "at the hearings quoted by John Doe in his book."

Or can I just use the quote as if I found it myself in John Doe's book, which I easily could have.

What I mean is, if it's a great quote for my purposes, does the first person who grabs it for his book own it forever? Isn't the quote out there for everyone to use? Or do I have to go to the source and use a different quote?

PinkAmy · Apr 17, 2011

When I wrote my dissertation, I went back to the original source of the quote and used that. My reasoning a quote by Joe Blow where he quoted Freud didn't have the standing that the actual quote from Freud would have. I believe in crediting the original, not sure if it's legally necessary, but it seems like the right thing to do.

Summonere · Apr 17, 2011

What I mean is, if it's a great quote for my purposes, does the first person who grabs it for his book own it forever?

No. Not if by “public document” you mean one within the public domain, and to which copyright does not apply.

Isn't the quote out there for everyone to use?

Maybe. See above.

Or do I have to go to the source and use a different quote?

Probably not. See above.

In addition to that, two basic comments:

One: You will never be in error when seeking permission to use copyrighted material.

Two: You are allowed fair use of copyrighted material without seeking permission for that use.

Amplification:

What constitutes “fair use” is not clearly defined under law, but guidelines are provided for such use, including for educational, critical, and commercial purposes.

One of the guidelines is that such use must not be substantial enough to lessen demand for the original. A critical examination of a text, for instance, that quotes a few passages, can constitute fair use. Another guideline is that the quoted material must not provide the commercial value of the work quoting it. Again, quoting a few lines from a work can constitute fair use. Anything that damages the potential market for or value of the copyrighted material is not allowed.

Disclaimer: I studied copyright law ages ago and haven't looked at it much since, so I'll happily be educated by lawyers who may wish to chime in. Consider my chatter “for informational purposes only.”

veinglory · Apr 17, 2011

I agree that you need to get the primary source and quote from that. Then you quote only the comment from the secondary source. Second citing is a bit touchy as there are often misquotes or misinterpretations that can get amplified by not checking them right back to the original.

DiloKeith · Apr 17, 2011

I was going to say that ^. Plus - you'd want to give the second source credit for finding the great quote. You could find a way to work that in. That strikes me as more of an author acknowledgment matter than a copyright concern.

Pete Morin · Apr 17, 2011

popmuze said:
This is driving me crazy. Let's say you're allowed to use 200 words from a book before you need to get permission from the publisher (which you are). But let's also say 100 of those words are a quote from someone else, or from a public document. Do I have to say: "As John Smith was quoted in John Doe's book ".........." Or "at the hearings quoted by John Doe in his book."

Or can I just use the quote as if I found it myself in John Doe's book, which I easily could have.

What I mean is, if it's a great quote for my purposes, does the first person who grabs it for his book own it forever? Isn't the quote out there for everyone to use? Or do I have to go to the source and use a different quote?

You can ALWAYS use the original source and treat it accordingly - the secondary user's right is of no consequence.

I'm more interested in the idea of a "200 word rule" for fair use.

There isn't one.

There is only a 4-part test against which your use of copyrighted material is weighed, in the event that the copyright owner takes issue with you. Here's an interesting case involving the artist Jeff Koons that discusses the test:

Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006)

I do generally agree with you that under this 4-part test, you can make a convincing (even winning) argument for use of limited portions of someone's protected work. Song lyrics, for instance - there is a similar oft-repeated assertion that you can use "two lines" or some amount of song lyrics without permission without violating copyright. But there is NO BRIGHT LINE RULE, for song lyrics or anything else.

It's a fun discussion to have, but I'll not hijack your thread to have it (if I haven't already - sorry).

popmuze · Apr 17, 2011

For my last book I did diligent research on the fair use question. The ruling I got was 100 words from a magazine article and 200 words from a book without asking for permission. As far as lyrics, I wouldn't even quote a line. I paraphrased them when I had to. I wanted to use a few lines from a Hilary Clinton speech, but speeches are protected in their entirety. When I asked for permission I was denied. So I had to go to the old paraphrase. But that's why I hate asking for permission. I'd rather whittle a 125 word excerpt down to 99.
My only confusion is in a site like Questia, I believe, which gives you the entire transcript of court cases. What's the ruling on a judicial decision?
And of course on quotes within articles. My instinct is to treat the quote as if it's from the original source: using up to 100 words (unless it's from a speech).

popmuze · Apr 17, 2011

Pete Morin said:
Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006)

So, do you think this usage of a link is fair? That's the whole outlaw nature of the Internet at work. If I wanted to use this entire case as an example of something in my book, could I do it, or would I have to paraphrase and reinterpret and cut it down to 100 words? (In my particular book I'm looking at the Copyright Act of 1909 and the revisions of 1976, for example. Can I quote huge chunks of it? Is that public domain?)

In fact, a lot of my book deals with copyright and how it's under attack as never before.

Pete Morin · Apr 17, 2011

perfectly

popmuze said:
So, do you think this usage of a link is fair? That's the whole outlaw nature of the Internet at work. If I wanted to use this entire case as an example of something in my book, could I do it, or would I have to paraphrase and reinterpret and cut it down to 100 words? (In my particular book I'm looking at the Copyright Act of 1909 and the revisions of 1976, for example. Can I quote huge chunks of it? Is that public domain?)

Rule of thumb? Maybe. Ruling, as in court decision or decree? There isn't a hard and fast ruling that applies to magazines or books. There are cases where XXX words were held to be fair use, but the analysis is so fact specific that it is useless to apply to different circumstances.

The case report is a public document. There is no copyright on public documents. Same goes for quoting laws, whether old or new.

I don't know why you'd want to quote huge chunks of any federal case or statute - unless you're writing a book to cure insomnia.

Some cases do provide interesting, amusing, even hilarious facts - and since they exist in a public document, they are fair game for anyone looking for material.

ResearchGuy · Apr 17, 2011

Pete Morin said:
. . . There is no copyright on public documents.. . . .

Be careful there. State and local documents are protected by copyright (although registration is hit and miss -- probably more miss than hit). I have that straight from the Copyright Office. (That was several years ago, when researching the issue with respect to documents my office, a California state agency, published; even our then-lawyer was wrong, though, and refused to believe the law or the Copyright Office! Very weird. Every other agency but ours put copyright notices on their documents.)

Federal documents, with rare exceptions, are public domain. (Exceptions may, I believe, include some documents created under contract, but I'm on thin ice there.)

Heck, the California Administrative Code used to be copyrighted, if I recall right. Might still be. (There was a big stink about that.) And law codes published by the law publishers (festooned with notes and references) are copyrighted even if the underlying laws are public domain.

Not a lawyer . . . but worked for State of CA for a lot of years, and these questions came up.

--Ken

popmuze · Apr 18, 2011

Pete Morin said:
I don't know why you'd want to quote huge chunks of any federal case or statute - unless you're writing a book to cure insomnia.

Oliver Wendall Holmes is a very quotable guy. Some of those Supreme Court justices are a real riot.

Deleted member 42 · Apr 18, 2011

popmuze said:
In fact, a lot of my book deals with copyright and how it's under attack as never before.

You can quote the entire collection of U.S. statute. It's in public domain.

We all own our laws.

To properly quote it, you would need to cite it.

But it's perfectly legal and ethical to quote any U.S. statute.

Deleted member 42 · Apr 18, 2011

popmuze said:
So, do you think this usage of a link is fair?

That's been settled by case law, and it was deemed to be acceptable under specific conditions, including a context that identified the original source of the linked document, and that said link did not attempt to imply, assert or claim ownership, via presentation (i.e. an invisible frame or insertion code).

popmuze · Apr 18, 2011

This is a little off topic, but since I'm the OP, who cares? I haven't read any ebooks, but I'm wondering if they contain links?

ResearchGuy · Apr 18, 2011

popmuze said:
This is a little off topic, but since I'm the OP, who cares? I haven't read any ebooks, but I'm wondering if they contain links?

They can.

--Ken

Jamesaritchie · Apr 18, 2011

There is no 200 word rule under fair use, nor a 100 word rule. There are specific ways and means to use copyrighted material. Unless your use falls squarely into one of these specific ways and means, you should always get permission.

Beyond this, you can't just look at one ruling and say it applies to you. Each case is different, and fair use, like plagiarism and copyright violation are determined in a court of law. If you ruling goes against you, you got it wrong, whatever you did.

Deleted member 42 · Apr 18, 2011

popmuze said:
This is a little off topic, but since I'm the OP, who cares? I haven't read any ebooks, but I'm wondering if they contain links?

Sometimes; it depends on the file format. Most can, and do.

popmuze · Apr 18, 2011

Jamesaritchie said:
There is no 200 word rule under fair use, nor a 100 word rule. There are specific ways and means to use copyrighted material. Unless your use falls squarely into one of these specific ways and means, you should always get permission.

Beyond this, you can't just look at one ruling and say it applies to you. Each case is different, and fair use, like plagiarism and copyright violation are determined in a court of law. If you ruling goes against you, you got it wrong, whatever you did.

In my last non-fiction book, the publisher supplied me with their writer's guidelines, which allowed for 200 words from a book and 100 words from a magazine article. Which I adhered to as I quoted from dozens of different sources (always giving credit).

popmuze · Apr 18, 2011

Medievalist said:
Sometimes; it depends on the file format. Most can, and do.

I once wanted to do a music book which would link to Youtube videos of the songs I discussed. Although I guess this is technically possible, and would be great for the audience, it was determined that the licensing fees from the record companies and publishing companies would be prohibitive.

Deleted member 42 · Apr 18, 2011

popmuze said:
I once wanted to do a music book which would link to Youtube videos of the songs I discussed. Although I guess this is technically possible, and would be great for the audience, it was determined that the licensing fees from the record companies and publishing companies would be prohibitive.

Yeah, it really would; music licensing is so arcane that there are sub-agents that one often uses just to deal with music licensing.

And music licensing in the digital realm is still having a shake-down cruise.

Ketzel · Apr 18, 2011

In my last non-fiction book, the publisher supplied me with their writer's guidelines, which allowed for 200 words from a book and 100 words from a magazine article. Which I adhered to as I quoted from dozens of different sources (always giving credit).

"Fair use" is not a legal right to use another person's copyrighted material. "Fair use" is a defense to a charge that you've infringed. What your publisher has done in the guidelines is guesstimate how far a writer can go before it becomes too risky that the copyright holder will come after the publisher (and the writer) for infringing on the original work. Were it me, I would not be at all comfortable relying on it for my own protection, aside from any personal ethical issues.

Whether or not you give credit doesn't affect the basic claim of copyright infringement, just as saying that the beautiful necklace came from Judith's house doesn't protect you from being charged with stealing it.

When in doubt, consult a copyright lawyer. If we writers aren't completely scrupulous about honoring copyright, don't we run the risk of undermining the value of our own work? Not that I'm accusing anyone of anything - this thread started with a perfectly legitimate question about using another's material. I'm just suggesting that questions of this type need expertise to answer correctly, and the stakes in getting it wrong can be high.

popmuze · Apr 18, 2011

Medievalist said:
And music licensing in the digital realm is still having a shake-down cruise.

Excellent phrase!

aruna · Apr 18, 2011

hmmm.
I came here wanting to post a new thread on the same general subject. I wonder if I might shoehorn my question into this discussion, as it is about fair use in a non-fiction book.

There's an article on a free website I'd like to quote from. Ideally, I'd like to use the whole article as it says exactly what I want to say. (But of course I won't!) But I would like to quote a few passages, and in condensed form repeat the arguments of the writer, either in indirect speech or paraphrased. Smith says that.... and so on. At a later stage (this is only first draft) I will certainly write that author and ask for permission, but I don't want to make a fool of myself...

popmuze · Apr 19, 2011

If you get permission, I'm sure you can quote as much as you ask for and the author agrees to. (Be specific in your request).

Otherwise, I'd limit it to 100 words.

Max Vaehling · Apr 19, 2011

Websites often have specific copyrighted notices somewhere.

Fair Use

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