Name of Copyrighted Work:
Proposed Use:
Amount of Work to be Used:
Prepared by:
Date:
1. Purpose and Character of the Use
Favoring Fair Use
Transformative or productive use
Teaching (including multiple copies
(changes the work for new utility)
for classroom use)
News reporting
Research
Comment
Scholarship
Opposing Fair Use
Nonprofit educational institution
Commercial activity
Criticism
Profiting from the use
Restricted access (limited to students
Entertainment
or other appropriate group)
Bad-faith behavior
Parody
Denying credit to original author
2. Nature of Copyrighted Work
Favoring Fair Use
Opposing Fair Use
Published work
Unpublished work
Factual or nonfiction based
Highly creative work
Important to favored educational
(art, music, novels, films, plays)
objectives
Fiction
Portion used is not central or
significant to entire work
3. Amount of Proposed Use
Favoring Fair Use
Opposing Fair Use
Small quantity
Large portion or whole work used
Portion used is not central
Portion used is central to or
or significant to entire work
“heart of the work”
Amount is appropriate for
favored educational purpose
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 255
4. Effect of Proposed Use on Market for Copyrighted Work
Favoring Fair Use
User owns lawfully purchased or
Significantly impairs market or
acquired copy of original work
potential market for copyrighted
One or few copies made
work or derivative
No significant effect on the market
Reasonably available licensing
or potential market for copyrighted
mechanism for use of the
work
copyrighted work
No similar product marketed by
Affordable permission available for
the copyright holder
using work
Lack of licensing mechanism
Numerous copies made
Opposing Fair Use
You made it accessible on the Web
Could replace sale of copyrighted work
or in other public forum
Repeated or long-term use
Although not really transformative,
If permission were required for these
photo copying by teachers for classroom
socially helpful uses (presumably for a
use may also be a fair use, since teaching
fee), it is likely that few or no reviews or
also furthers the knowledge-enriching
scholarly works would be written; neither
goals of the copyright laws.
the authors nor publishers of works that
Note that the uses listed above, with
earn such modest sums could afford to
the possible exception of news reporting,
pay for the necessary permissions. (News
are primarily for nonprofit educational
organizations perhaps could afford to pay
purposes. Although some money may be
for permissions, but requiring them to do
earned from writing a review or scholarly
so in all cases would inevitably impede the
work, financial gain is not usually the
free flow of information, and might also
Opposing Fair Use
primary motivation—disseminating
violate the free press guarantees of the First
Large portion or whole work used
information or otherwise advancing
Amendment of the Constitution.)
Portion used is central to or
human knowledge is.
“heart of the work”
256 | THE COPYRIGHT HANDBOOK
In contrast, an author or publisher of a
attribution for the quotes. In addition, the
work written primarily for commercial gain
copyright owner of the articles (who turned
usually can afford to pay for permission
out to be Hughes himself) had no intention
to use others’ protected expression. It also
of using the articles in a book, so the use
seems inherently fair to require the author
was not a competitive use. A court held
or publisher to do so. In the words of one
that the quotations qualified as a fair use.
court, fair use “distinguishes between a true
Although the biography had been published
scholar and a chiseler who infringes a work
primarily to earn a profit, it also benefited
for personal profit.” ( Wainwright Securities,
the public. The court stated that “while the
Inc. v. Wall Street Transcript Corp., 448 F.2d
Hughes biography may not be a profound
91 (2d Cir. 1977).)
work, it may well provide a valuable source
For these reasons, the fact that a work is
of material for future biographers (if any) of
published primarily for private commercial
Hughes or for historians or social scientists.”
gain weighs against a finding of fair use.
( Rosemont Enters. v. Random House, Inc., 336
For example, using the line, “You don’t
F.2d 303 (2d Cir. 1966).)
need a weatherman to know which way the
It is even possible for an advertisement to
wind blows” (from Bob Dylan’s song) in a
constitute a fair use of protected expression
poem published in a small literary journal
if it serves the public interest as well as
would probably be a fair use; but using the
the advertiser’s commercial interests. For
same line in an advertisement for raincoats
example, a vacuum cleaner manufacturer
probably would not be.
was permitted to quote in an ad from a
However, the fact that a writer’s primary report in Consumer Reports comparing
motive is commercial does not always
various vacuum cleaners (and concluding
mean the writer can’t exercise the fair use
that the manufacturer’s model was the best)
privilege. If the other fair use factors are in
because the ad significantly increased the
the writer’s favor, the use may be considered number of people exposed to the Consumers
a fair use. This is particularly likely where
Union’s evaluations. The ad served the public
the use benefits the public by furthering the interest by disseminating helpful consumer fundamental purpose of the copyright laws: information. ( Consumers Union v. General
the advancement of human knowledge.
Signal Corp. , 724 F.2d 1044 (2d Cir. 1983).)
The same rationale probably applies to the
EXAMPLE: The authors of an unauthorized
widespread practice of quoting from favorable
popular biography of Howard Hughes
quoted from two Look magazine articles
/>
reviews in advertisements for books, films,
about Hughes. All three fair use rules were
plays, and so on. However, as a general rule,
satisfied. Only a small number of words were
you should always seek permission to quote
quoted, and the authors had provided proper protected material in an ad.
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 257
The Nature of the Prior Work
expression without having been authorized
to do so infringes upon the author’s right
As we discussed in Chapter 5, “What Copy- to decide when and whether a work will
right Protects,” to preserve the free flow of
be made public. Obviously, this factor is
information, less copyright protection is
not present with published works, and the
given to factual works (scholarly, technical, Supreme Court has held that the fact that a scientific works, and so on) than to works
work is unpublished weighs heavily against
of fancy (novels, poems, plays, and so on).
a finding of fair use. ( Harper & Row v.
This is particularly true where there are
Nation Enterprises, 471 U.S. 539 (1985).)
only a few ways to express the facts or ideas
This in itself was not surprising.
in a factual work, and the idea or fact and
However, in a pair of highly controversial
its expression are deemed to merge. Thus,
decisions, federal courts in New York,
authors have more leeway in using material where most major publishers are located,
from factual works than from fanciful
went much further than the Supreme Court
ones, especially where it’s necessary to use
and indicated that the unauthorized use of
extensive quotations to ensure the accuracy unpublished materials can never be a fair of the factual information conveyed.
use. In the first case ( Salinger v. Random
House, Inc., 811 F.2d 90 (1987)), a well-
Use of unpublished materials
known literary biographer was prohibited
The extent to which unpublished materials,
from quoting or closely paraphrasing
such as letters and diaries, may be quoted
in a biography of J.D. Salinger from 44
without permission is a controversial
unpublished letters written by Salinger
copyright issue.
which the biographer had discovered in
EXAMPLE: Anthony, a wel -known film
university research libraries. In the other
historian, finds an unpublished letter written case ( New Era Publications v. Henry Holt, in 1965 by a famous Hol ywood director who 873 F.2d 576 (1989)), the court held that,
died in 2000. May Anthony quote from the
but for a legal technicality, it would have
letter in a book he’s writing about the film
been impermissible for an author to quote
industry without obtaining permission from
without permission from L. Ron Hubbard’s
the letter’s copyright owners (presumably,
unpublished writings in a highly critical
the director’s descendants and heirs)? The
Hubbard biography.
answer is maybe, maybe not.
These decisions had a definite chilling
effect on publishers—that is, books that
When it comes to fair use, unpublished
quoted letters were rewritten to omit
works are inherently different from
the quotations. And suits against other
published works. Publishing an author’s
biographers were filed.
258 | THE COPYRIGHT HANDBOOK
Attribution Does Not Make a Use Fair, but Should Always Be Provided
Some people have the mistaken idea that
copyright management information may
they can use any amount of material so long
be removed where a work is copied on the
as they give the author credit, whether in a
grounds of fair use, but it’s a good idea to
footnote or by mentioning the title of the
include such information anyway—this
book after a quotation. This is simply not
prevents even the possibility of being sued for
true. Providing credit for a quotation will not
removing such information. (For a detailed
in and of itself make the use of the quote a
discussion of liability for removing copyright
fair use. For example, if you quote an entire
management information, see Chapter 11,
chapter from another author’s book without
“Copyright Infringement.”)
permission, your use wouldn’t be considered
Second, it is likely that a judge or jury
fair even if you give that author credit.
would look with disfavor on an author who
On the other hand, it is always a good
attempts to pass off the words of others
idea to provide attribution for quoted or
as his or her own and then has the nerve
paraphrased material. There are two reasons
to cry “Fair use!” when sued for copyright
for this.
infringement. They might be inclined not
First, the copyright law makes it illegal to
only to find that the use is not a fair use, but
remove “copyright management information”
to impose particularly heavy damages in an
if you know it will induce or facilitate copyright infringement suit. If you quote someone else’s infringement. Copyright management
work, always give that person credit. Quoting
information incudes a work’s title, the author’s
with attribution is a very good hedge against
name, and the copyright notice. It appears that
getting sued, or losing big if you are sued.
As you might expect, publishers, authors’
fact that a work is unpublished does not
groups, biographers, historians, and others in act as an absolute bar to a finding of fair the literary community were highly critical
use. Section 107 of the Copyright Act now
of these two decisions, arguing that they
states: “The fact that a work is unpublished
enabled the heirs of wel -known figures to
shall not itself bar a finding of fair use if
control how scholars and others can use their such finding is made upon consideration of unpublished writings, effectively creating a
all … [four] fair use factors.”
class of widow or widower censors.
This amendment to the Copyright Act
After a two-year fight, the fair use
was intended to return the law to where
provision in the Copyright Act was
it was before the controversial New York
amended in 1992 to make clear that the
federal court decisions discussed above.
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 259
The fact that a work is unpublished weighs
Fair use of out-of-print works
against fair use, but it is a hurdle that can
The drafters of the Copyright Act and the
be overcome in some cases. An important
Supreme Court have suggested that a user
case decided before the amendment became may have more justification for reproducing
law illustrates how the law works today.
a work without permission if it
is out of
In this case, a biographer’s unauthorized
print and unavailable for purchase through
use of a modest amount of material from
normal channels. ( Harper & Row v. Nation
unpublished letters and journals by the
Enterprises, 471 U.S. 539 (1985).) Thus,
author Richard Wright was found to be a
most courts give users more leeway when
fair use. The court held that, although the
they quote from or photocopy out-of-print
unpublished status of the material weighed works. But this does not mean that any
against fair use, the other three fair use
amount of material from out-of-print works
factors all were in the biographer’s favor.
may be used without permission.
( Wright v. Warner Books, Inc. , 953 F.2d 731
(2d Cir. 1991).)
The Amount and Substantiality
of the Portion Used
TIP
The more material you take, the more likely
In deciding whether your unau-
it is that your work will serve as a substitute
thorized use of unpublished material could
for the original and adversely affect the value
be a fair use, focus first and foremost on the
of the copyright owner’s work, making it less
impact of your use on the value of the mate-
likely that the use can be a fair use. However,
rial. J.D. Salinger’s literary agent testified at trial
contrary to what many people believe, there
that Salinger could earn as much as $500,000
if he published his letters. Thus, if a biographer
is no absolute word limit for fair use. For
were permitted to publish portions of his most
example, it is not always okay to take one
interesting letters first, it could have cost Salin-
paragraph or less than 200 words. Copying
ger substantial royalties. This could not be a fair
12 words from a 14-word haiku poem
use. But you might be able to use unpublished
wouldn’t be fair use. Nor would copying
material if it would not cost the copyright owner 200 words from a work of 300 words likely anything. For example, quoting a few lines from
qualify as a fair use. However, copying 2,000
a letter written by an unknown and long-dead
words from a work of 500,000 words might
Civil War veteran might constitute a fair use
be fair. It all depends on the circumstances—
where the letter itself has little or no intrinsic
for example, it may be permissible to quote
value to the veteran’s heirs.
extensively from one scientific work to ensure
the accuracy of another scientific work.
The Copyright Handbook Page 45