At least once a week, I get an email that reads something like "I found the perfect image for my book on the internet. Can I use it, as long as I give credit to the photographer?" or "I have the best song to set a scene in my book. Can I quote the song lyrics?" In order to answer these questions, we have to understand "fair use."
Even if you give credit, you could be infringing on the creator’s copyright.
Any time you use a work created by someone else, whether it’s an image, a quote, or a few lines of lyrics, you need to consider two things:
- Is the work protected by copyright?
- Will your use infringe on that copyright?
Not all creative works are subject to copyright, and not all uses are infringement. How are you to know? Here are some guidelines.
Is the Work Subject to Copyright?
There are three major categories of works that are not protected by copyright and are, therefore, in the public domain. Any work in the public domain is free to use without permission or compensation. You should, however, always give credit to the original creator out of respect and to avoid plagiarism. Plagiarism is not a legal claim; it’s an ethical standard.
1. The copyright has expired.
The most common reason a copyrighted work falls into the public domain is the copyright has expired. For example, Shakespeare’s plays, Mozart’s sonatas, and Leonardo da Vinci’s Mona Lisa are all in the public domain. The copyright has expired for:
- Any work first published before 1924
- Any unpublished work created before 1899
- Any unpublished work created by someone who died before 1949
For works published between 1924 and 1977, the expiration depends on whether a copyright notice was properly placed, whether the copyright was registered, and whether the registration was renewed. For works published after 1977, the copyright won’t expire until 70 years after the author’s death.
The duration of copyrights for works created in different countries may be different. Cornell University posts a chart to help you determine what’s in the public domain.
For example, suppose you want to use the lyrics of Take Me Out to the Ballgame.
With a little internet research, you’ll find that the lyrics were first published in 1908. Its copyright has expired, and you would not be infringing on the songwriter’s copyright by using the lyrics.
Keep in mind that only the lyrics, as they were published in 1908, are in the public domain. Lyrics added after 1923 may still be protected by copyright.
2. The work was created by the U.S. federal government.
Any work created by employees of the U.S. government in their line of work is almost always in the public domain. Whether you are looking for images of the Ebola virus military tanks or reports about super-cell tornados, you’re likely to find and use what you need.
Here is a sampling of government agency sites with searchable, downloadable, public-domain images:
- National Fish & Wildlife Service
- National Oceanic and Atmospheric Administration
- U.S. Antarctic Program Photo Library
- National Institutes of Health
- The Public Health Image Library of the CDC
- The General Services Administration
3. The work is not copyrightable.
Book titles, raw data, real-world events, and objective information are not protected by copyright and so are in the public domain.
Will Your Use Infringe, or Does it Qualify as Fair Use?
What if you determine that the image or text you want to use is still covered by copyright? Then you need to consider whether your use of the material qualifies as fair use. Copyrighted material may be used as fair use without permission from the copyright owner.
What is fair use?
Fair use is defined as any copying of copyrighted material (even verbatim) for a limited purpose, such as commentary, criticism, news reporting, education, or parody.
The exception has grown to include “transformative” uses, which generally means the use involves substantial new content, new interpretation, and new creative expression so that the resulting work has a new meaning or reaches a new audience.
The line between fair use and infringement is murky.
There is no set formula for determining what constitutes fair use. Much depends on the facts of the case, the aggressiveness of the copyright owner, and the temperament of the judge. There is no specific number of words that may be used without permission. Non-commercial or educational use is not 100% safe, particularly if you use a substantial part of the original material.
In the United States, courts take four factors into consideration in determining whether a use is fair use. No one factor controls; they are weighed against one another.
The 4 Factors of Fair Use
The purpose and character of the use. Is the use commercial or for commentary, criticism, or educational purposes? Does the new work offer something above and beyond the original?
The nature of the copyrighted work. Reusing primarily factual content is more likely to be fair use while reusing artistic elements is not. Using unpublished works is less likely to be fair use due to the potential negative effect on the market value of the original work.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The more you use, the less likely it will be considered fair use, especially if you use the “heart” or “essence” of a work. Use as little as you need.
The effect of the use upon the potential market for, or value of, the copyrighted work. If you are reducing the value of the original work, your use is unlikely to be fair use.
For example, if you use lyrics from Bob Dylan and Eminem to compare their treatment of women, that is probably fair use. But using the same lyrics in a novel to evoke a setting is not fair use and could be infringement.
Using a historical photo as a small part of a larger, expressive work such as a memoir or novel is likely to be fair use. In contrast, reproducing and selling the image as a poster and on mugs would not be fair use since the image is central to the product.
Fair use is a defense. If you are sued, you would have the burden of proving fair use. And the court cases are not entirely consistent. The safest course is to get permission from the copyright owner. Even if you are well within safe lines, the copyright owner might sue you anyway. Think of the attorney’s fees and the time involved. While I admire those who take on David-Goliath fights, I’d rather spend my time writing my next book.
Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.