Carla King interviews Joseph Perry to discuss what authors need to know about Fair Use copyright rules.
Nonfiction Authors Association Podcast | February 8, 2023
‘At the end of the day, make sure you’re giving the reader a reason to see why you’ve brought this into the fold. Again, just think of–are you progressing the arts and sciences here? Or are you just copying and pasting because it’s cool? Are you using it because you like the effect of something? That’s not enough for a court to say, ‘Yeah, sure. That’ll be okay.’ You really have to bring something new to the table.’
-Joe Perry
About Joseph Perry
Joseph Perry is a literary agent and publishing attorney at Perry Literary, Inc., and The Law Offices of Joseph J. Perry, P.C. As an agent he represents bestselling cookbook authors, athletes, musicians, journalists, influencers, academics, and more. As an attorney, Joseph counsels clients in the publishing industry, where among other things, he drafts, reviews, and negotiates various publishing agreements and conducts prepublication review of manuscripts.
Nonfiction Authors Podcast: Joseph Perry
Find the video podcast, show notes, links, quotes, and podcast transcript below.
Live on 2/8/23 at 10:00am PT
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Show Notes
Links
- Perry Law (Literary Law)
- Joseph Perry’s Literary Law Blog
- Subscribe to Joseph Perry’s newsletter to receive weekly legal tips for writers.
- Legal Issues For Authors (NFAA Course presented by Joe Perry)
- Public Domain Day 2023 (Duke Law)
- Andy Warhol Case
- Campbell v. Acuff-Rose Case
- Harper and Row Case
In this episode…
- The definition of Fair Use and the four factors that courts look at when evaluating Fair Use requests.
- Common Fair Use violations.
- The definition of transformative use.
- How to find out if lyrics, poetry, and more are able to be accessed through a public domain.
- Favored purposes that courts may look at.
- When to give credit when using Fair Use items, and why an editor is important at this step.
- A look into the Andy Warhol Fair Use case, and how it relates to writers.
- A breakdown of the four factors, how to understand them, and what writers need to know about each.
- The difference in court protection of factual works and creative works.
- More about Joe Perry’s course (presented in partnership with the NFAA)-Legal Issues for Authors.
Transcript
Hello and welcome to the interview series for the Nonfiction Authors Association. Today’s session is with Joseph Perry and we will be talking about an author’s guide to Fair Use copyright rules. I’m Carla King, your host, and I’m happy to have you with us today. This interview will last only 30 minutes and you can find the replay on our Nonfiction Authors Association website and social media platforms including YouTube, and wherever you listen to podcasts.
And now I’d like to introduce our guest.
Joseph Perry is a publishing attorney and literary agent at The Law Offices of Joseph J. Perry, P.C. and Perry Literary, Inc. respectively. As an attorney, Joseph counsels clients in the publishing industry, where among other things, he drafts, reviews, negotiates various publishing agreements, and conducts pre-publication review of manuscripts. As an agent he represents bestselling cookbook authors, athletes, musicians, journalists, influencers, academics, and more. You can find out more about Joseph at JosephPerryLaw.com or PerryLiterary.com. Joseph obtained his Juris Doctor from St. John’s University School of Law and a Master of Arts and Bachelor of Arts in English from St. Bonaventure University. He is a graduate of New York University’s Summer Publishing Institute.
Joe has created two self-study courses for the NFAA on Legal Issues for Authors. You’ll find out more about these courses at the end of our interview.
Hi, Joe, welcome to the podcast.
Joe Perry 2:10
Thank you so much. It’s so great to be here.
Carla King 2:12
Well, we need you. Because Fair Use violations are a huge topic. And I know, in my talks with authors, we are discussing it all the time–whether we can use song lyrics, whether we can use quotes, poetry, whatever. So I’d love to start with those common violations. And then we’ll talk about steps to avoid it, and when you can get permissions and licensing for words–and maybe images–that we want to use in our books. A lot of us are writing books that dive deep back into history, right? And fair use is just part of the bigger ecosystem of copyright law, which is a huge tangled octopus thing, isn’t it?
Joe Perry 2:57
Oh, without a doubt, yes. Fair use is what I like to call the wild wild west. A case by case basis. I wish it was easy–that would make my job a lot easier.
Carla King 3:08
I want to just give an example. I was working with an author who wanted to use quotes from song lyrics from a certain era under each of her chapter headings. For example, she wanted to use Led Zeppelin’s ‘Stairway to Heaven.’ She wanted to use the quote, ‘There’s a lady who’s sure all that glitters is gold, and she’s buying a stairway to heaven.’ I said, ‘I think you should check on that.’ And she found out that she couldn’t do that.
Joe Perry 3:42
Unless she, of course, got permission.
Carla King 3:44
Well, she did. I have to say, she was able to connect with some of the band’s representatives. And they said, ‘Yeah, it’s $25,000 to use that quote,’ right? So where’s the line here?
Joe Perry 4:00
So it all depends. So can I just take a step back and explain–what is Fair Use? I think that’d be a good segway and then get into that. You need the context beforehand. So courts look at four factors. It’s from section 107 of the Copyright Act for any copyright nerds out there. You can actually look at the language. That can really help you because it’s vague.
But factor one looks at the purpose and character of the use. And we’ll get into transformative use, I assume, later on in the podcast. Second factor is the nature of the work–whether the work you’re taking is creative, or if it’s factual in nature. Third, they look to see actually how much you’ve taken from the work qualitatively and quantitatively. There’s, I think, a misconception that, ‘I’ve only used a few lines,’ or, ‘I used 10% of the work.’ It really is a case by case basis. And then four is the effect of your use on the market. Could you have licensed that work? If you could have licensed it, it can be a factor against you. This is where it’s tied to purpose. Where, if you’re using it for research purposes or–making this up–you made a PowerPoint presentation for a private party you’re having with friends about whatever topic you’re talking about, that’s likely not going to be risky. But if you’re using it for commercial purposes.
So to get back to your question, the problem is–yes, you can get permission, but it’s just going to be so, so expensive. And you just have to think about who you’re dealing with. I used to work at Sony Music before publishing. People in the music industry are just notoriously litigious. They’re very protective of their intellectual property.
Carla King 5:42
Except for the Grateful Dead, right?
Joe Perry 5:44
Yes, exactly, exactly.
Carla King 5:47
They’re, like, ‘Go for it, take it.’ They’re amazing.
Joe Perry 5:55
So with that in mind, if you’re going to use the most famous lyrics, arguably, of that band’s repertoire, it’s going to be incredibly expensive, even if you are using a line or two. And this gets back to how you’re using it–the purpose and character. They’re essentially asking, ‘Why are you using this work? What are you doing with it?’ The whole point of copyright law is to progress the arts and the sciences. So what are you doing with that work? With whatever you’re taking? Are you just copying and pasting it because it adds some sort of vibe to your novel, or book, or whatever it may be? Or are you bringing in that content so you can educate the reader? You’re evaluating the lyrics, you’re analyzing–this is where transformative use comes in, which is essentially giving new meaning and new utility to a work.
The easiest example I give is–go back to our research papers in school. You took a source, you put it into your paper, and you evaluated it towards whatever argument you were trying to make. The same thing goes for things like song lyrics–you’re going to have a much easier case to say something is Fair Use if you’re writing a critical biography of Led Zeppelin, and you’re analyzing those lyrics. Compared to if you just want to use a lyric or two, underneath your chapter titles, or if you put in the epigraph page. You’re not really doing anything with it. It’s cool, but you’re not really progressing the arts and sciences. And, again, when it comes to lyrics, the music publishers are just very, very litigious. And you’re going to have to pay a lot of money.
So what people end up saying–especially for novels–is make it up. I know that may not be what you want to hear, but that’s the easiest way to not have any issues, or make sure it’s in the public domain. Or try to get permission. If you strike out, or if you can’t contact them, you can try within Fair Use. But there are just certain ways that you can use the content. It’s not to say that if you use it in that particular way that that person wouldn’t want you to use it, that it’s automatically not going to be Fair Use. But I think there’s just an argument to be made that it won’t be. That’s what lawyers do. We try to predict. So it’s not an exact science.
Carla King 8:22
Which is tough, I know. And I have gotten so much pushback, even in classes–they’re like, ‘Well, okay, but in my memoir, the band where my husband proposed to me was singing Stairway to Heaven. So why can’t I do that?’ Or, ‘The person who was standing next to me was singing those lyrics.’
Joe Perry 8:43
Right. You could do song titles–that’s perfectly fine. Those aren’t copyrighted, but some titles are trademarked. So a song like ‘Stairway to Heaven’, I imagine, is trademarked. So you may have an issue there. But I think you might have a good argument to say, ‘Someone was singing the song Stairway to Heaven at a club,’ or wherever it could be.
Carla King 9:09
Okay. So say you’ve already done it. I know there are some authors out here who might have already done that in their books. How likely is it that the copyright owner is going to come after them? How do they tell? Are there internet spiders and Kindle spiders that go and look at that?
Joe Perry 9:25
Sometimes. Some companies have software that essentially lets them know. And I don’t know who’s doing it and who’s not doing it. But the fact that that’s out there, I think–I don’t want to say it’s going to chill expression, but it’s definitely going to stop people from doing it. So it’s out there. You want to just be careful. If it’s in a novel, make up the lyrics. It’s not only going to be my counsel, it’s what your editor is likely going to say, as well. Unless the lyrics are in the public domain.
Carla King 10:02
Oh, good. So editors largely know about this stuff. That’s good to know. Alright–hire a professional editor. So what about–let’s say I’m writing and I want to put a line of Byron’s poetry. Is Byron’s poetry out of copyright? How do I find out?
Joe Perry 10:22
Yeah, it’s in the public domain. So great resource–just Google Public Domain Day. Duke Law School has this great, great resource. And I believe now it’s either 1926 or 1927. Anything before that is now in a public domain.
Carla King 10:38
Public Domain Day. It’s like when you’re buying liquor at the grocery store–the cashier is looking at your driver’s license date.
Joe Perry 10:49
Exactly. It’s every January 1–every New Year’s Day we copyright lawyers celebrate. Great Gatsby is now in the public domain. I think the Sun Also Rises. But the resource is good, because it’s not just about books. They have an encyclopedic of different types of creative works. So for that–for a Byron example–go ahead and feel free to use whatever Byron poems you want. However, with that said, it depends on the poem that you use–in terms of where you’re crediting the source. If it’s a book that’s published, you just have to make sure I published, say, last year, you have to make sure that you’re essentially just taking the poem, and not information that that copyright owner owns. The information that that copyright owner will own is their original selection and arrangement of information. Whether that’s how they express their opinions or analysis of buyers. Essentially, anything extra outside of the poems–they’re going to have that. They’re gonna own that. So you just want to make sure that you’re not taking more than what you need. So it’s very layered, unfortunately. But generally speaking, if you want to use a Byron poem, go for it.
Carla King 12:06
Okay, good. Great reference. Thank you. So for the authors who are doing critical work–what is under Fair Use? When can I use the lyrics or the poetry?
Joe Perry 12:24
This goes back to the purpose and character in factor one. There are certain favored purposes that courts look at. And just as a caveat–just because it may be a favored purpose doesn’t automatically mean it’s going to be fair use. You have to look at all four factors. I tell that to all my clients. So essentially, you want to do a complete analysis, rather than stopping at factor one and saying, ‘Oh, it’s for education.’ You may have a better argument to be made. You’ll have a more complete analysis that way if you look at all the factors.
So back to your question. The favorable uses–a lot of them are written out in the statute in Section 107. Research, education, scholarship, those types of things. Criticism. Commercial uses are not favored uses. But essentially–and as we’ve entered the digital age and the 20th century into the 21st century–it seems like every use is essentially commercial. So the same analysis goes for commercial use–that, just because you’re going to say you want to use, like you said, lyrics in a book, that’s for a commercial purpose. Doesn’t automatically mean it’s not going to be Fair Use.
You have to use the four factors first, or semi analyze the four factors first before determining that. So a concrete example would be–let’s just take Led Zeppelin. If you’re writing a biography of Led Zeppelin, like a critical biography of them, and you’re analyzing the lyrics and what they mean–that they mean to the band, what they mean to rock and roll, and to music today. You’re essentially transforming the lyrics–you’re giving the reader a new interpretation, a new meaning as to how those lyrics fit into the greater artistic world of rock and roll.
Carla King 14:27
Even if you use it correctly, you still have to give credit. So how do you find out where to give credit? Do you have to do it right away or are there bibliographical notes?
Joe Perry 14:44
This goes more towards the publisher’s style, because some books I’ve seen footnoted, others it’s all the way in the back of the book–like a bibliography. And this is where you’ll be working with–presumably, if you’re with a traditional publisher–you’ll be working with their team, too, to come up with the copyright page, where there’s any permission that’s used. I’m sure you’ve seen this–’Permission is used by XYZ, X band.’
Carla King 15:14
Right–permission is granted. Well, there are a lot of people self publishing now. And not all of them use professional editors. So I do want to say that using professionals to edit your book is–as you noted-super valuable, because they know about these things. A lot of people just self publish their stuff then put it out and go, ‘Oh, no.’
Joe Perry 15:41
Exactly. The way I look at it is–it’s all a risk analysis. It’s how much risk you can take. And it’s not to say that if you’re very, very risky, that, ‘To hell with everything, I’m just gonna do it.’ You may find yourself in a lot [of trouble].
Carla King 15:57
‘And I won’t get caught.’ But now we have these spiders.
Joe Perry 16:00
Exactly. So that’s why I always say–if you can, try to transform the content. That’s really the big factor. And the other big factor is the effect on the market. An article that I was just sharing with friends–that’s totally different than me writing it.
Carla King 16:29
But not on my blog post. I can use them on my newsletter, but not my blog posts?
Joe Perry 16:34
No, that’d be the same thing. Because a newsletter–you can be using it for a commercial purpose.
Carla King 16:39
That’s true. Okay. Careful, people. Good to know. Thank you.
Joe Perry 16:44
At the end of the day, make sure you’re giving the reader a reason to see why you’ve brought this into the fold. Again, just think of–are you progressing the arts and sciences here? Or are you just copying and pasting because it’s cool? Are you using it because you like the effect of something? That’s not enough for a court to say, ‘Yeah, sure. That’ll be okay.’ You really have to bring something new to the table.
Carla King 17:15
And this all goes back to this transformative argument that’s happening. There’s a big case, right? You want to talk about the Andy Warhol case, and what it has to do with writers, too?
Joe Perry 17:27
Yeah. So it’s mainly in the art world. And if we can just step back from that, we’re talking about fair use here. Namely how it deals with text. But the question that comes up all the time is, ‘What about artwork? What if you have to use the entire thing?’ With text, it’s a little easier, because you can just use snippets of text. But with artwork and photographs, it’s a lot more difficult, because you’re using the whole thing.
So with the Andy Warhol case–it’s outside of publishing, but it has implications for all types of art. And just a factual background–what happened here was that Lynn Goldsmith took a picture of prints–I believe in 1981. And Andy Warhol was commissioned to essentially create silk screens based on that photo. Which he did–I think he created 16 of them. But what had happened was after Prince died, Vanity Fair used one of those silk screens as a photo on their magazine cover, I think, to commemorate Prince’s death. And she found out, and she sued for copyright infringement. And the Andy Warhol Foundation wanted a declaratory judgment, which essentially says, ‘I declare that this is not infringement.’ And the district court said that it was fair use with what he did. I wish I had a visual here. But you can just Google it–you’ll be able to see exactly what I’m talking about.
Carla King 18:56
Maybe I’ll put a visual on the video version on YouTube.
Joe Perry 18:59
Sure. But then what happened was–that the Second Circuit reversed the decision, and said, ‘This isn’t fair use, you’re actually infringing on Goldsmith’s derivative work right. This isn’t transformative.’ So now it’s at the Supreme Court. They just had an oral argument a couple months ago, so we should be hearing the opinion. And it’s hard to say what may happen here. It seems like the court is favoring Goldsmith, because they’re dealing with the vague language of transformer abuse. They’re essentially asking themselves, ‘Is it transformative?’ Is it enough to say something is transformative if something has new meaning or a new message? That may work for some things. But others, you’re going to have issues.
For example, for all writers here–if you were to adapt your book into a film, right now you get paid for that. You get an option, and they pay you to use your intellectual property. If the court were to come back and say, ‘That is fair use,’ that’s going to essentially give Hollywood a windfall. And so they’re wrestling with what to do–whether to say if it is transformative use. I think they’re going to actually decide that it’s not transformative use, just based on these concerns that I was just mentioning. But the implications are really big. Because if they do come up with a new test, everything that I’m saying here may be for not. Just because there may be a new test, however, the court may essentially remand the case. Because what I didn’t mention was that they only looked at the transformativeness of the use. They didn’t actually look at factors two, three, and four. So they may actually push it back down to the lower courts to look at factors two, three, and four. So it’s a lot.
There’s a lot riding on this, and even for art as well. A lot of people are saying, ‘How is this not Fair Use? It’s Andy Warhol. This is what he does. If this isn’t Fair Use, what is?’ So it just depends on the side that you’re on. But there are a lot of implications, because this is really the first time since the court has taken up a Fair Use case based on artistic–what I like to call it–merits since 1994. So it’s a really, really big deal. So I would definitely look out to see when this is published, to see what they do. I’d be very surprised if they suddenly turn around and come up with a brand new test. But they were wrestling with that in the oral argument–what to do, what type of tests. They didn’t like what the parties had suggested, if they weren’t going to have an alternative. At least that’s what it seemed to me. So it’s a big deal, but it’s hard to say what’s going to happen.
Carla King 21:59
Okay, well, we’ll be watching that, for sure. I’m seeming to remember that back in the day–it might have been Saturday Night Live or something–that somebody sued somebody for copying them, or doing satirical work, or comedy, or humor. I can’t remember what the situation was.
Joe Perry 22:18
So for a parody, you are bringing attention to the work itself. And actually, that was the case that I was just mentioning–the one from 1994. It was a Campbell v Acuff-Rose. And that was a parody of Roy Orbison’s ‘Pretty Woman’ to a crew–I forget the name of the song. But they wrote a parody of that. And the question was, ‘What they did–was that copyright infringement, or was that okay?’ And the Court said that it was okay. And part of the reason why parody is protected, is that you have to conjure up the original work for someone to know it’s a parody.
Carla King 23:02
I think that happened with Robert Palmer’s ‘Addicted to Love,’ too, didn’t it? I remember that. Okay. Can you go over the four factors again? I’m reading them, but I don’t quite understand them, because they’re kind of in legalese.
Joe Perry 23:24
Welcome to the world of confusion.
Carla King 23:28
Okay, so the first one is the purposes and character of the use, including whether the use is primarily commercial. In plain English…
Joe Perry 23:37
So that’s essentially–why are you using this work? Are you using it for a commercial purpose? Are you not? And there’s the preamble before that, which states the more favored purposes. So essentially, factor one looks at–why are you using it? And then, within that–it doesn’t say that in the language, this comes from the cases. And really, the Supreme Court came up with the transformative use analysis–how do you transform the work that you’re using? What are you doing to give it new meaning, new utility? What are you bringing that’s new here, rather than just essentially–I don’t want to say copying and pasting–but essentially doing that?
Carla King 24:18
Just making everything look cool. Making yourself look cool.
Joe Perry 24:21
There’s got to be a purpose to it. Exactly. Right now, the Andy Warhol case–that’s what they’re arguing about–what is purpose? What is character? How are they different? And it just goes towards what they may be thinking about in terms of the new test. Factor two.
Carla King 24:39
Okay, I gotta read that.
Joe Perry 24:41
Oh, sure. Go ahead.
Carla King 24:41
Okay. It says the nature of the copyrighted work being borrowed from.
Joe Perry 24:48
So the nature of the copyrighted work looks to see whether the work that you’re taking from is factual or creative in nature. And there’s a big difference in terms of what’s protected and what’s not. Factual works are less protected. And that is because, as a society, we need factual works to be out there.
Courts look at factual works by essentially saying, ‘They’re going to educate us, they’re going to make us better people.’ So they’re not going to be as protected. Creative works, on the other hand–like a novel, or a nonfiction book–this goes towards the legislative history of the Copyright Act. And how, essentially, politicians have viewed authors. And with creative works, it actually goes back to even some theories within literary theory–for all the English majors out there. In terms of, ‘What is an author?’ That’s been a huge question.
Carla King 25:42
You have to go back into Foucault and Derrida.
Joe Perry 25:46
Yeah. So that’s how I like to bring it up. Because there are connections there. I remember studying literary theory, like, ‘It’s interesting–when am I ever going to use it?’ But in this instance, there are connections. And so they’re asking, ‘What is an author?’ And they look at the author as this sort of romantic, mythic figure, who’s created something out of nothing. So you’ve created a novel–you should be celebrated for that. You’ve created a song. It’s really amazing that you’re able to do that. I mean, that’s really layman’s terms. But that’s essentially what they’re getting at. And they protect creative works more so than they would a factual work. And that’s part of the reason why they do that. And also, even though it’s not mentioned in the statute, courts also protect where you’re going to publish your work first. They want to make sure that you are in charge of where you want to publish first. So they protect unpublished works.
Carla King 26:50
Okay, that was number two. Number three. Thank you for enlightening us. The amount and importance of the portion used in relation to the original work as a whole.
Joe Perry 27:04
So this is where courts look at how much you’ve actually taken from the work– quantitatively and qualitatively. And this is where I say there’s no bright line rule Doesn’t matter if you took two lines of something, or even if you took a couple of paragraphs–context matters. It’s a case by case basis. So that’s the quantity. And then the quality–they look to see–what have you taken?
And a good example is the case of Harper & Row, which was a Supreme Court case from the 1980s. And what happened there was that President Ford wrote his memoir, and he was going to get it published by Harper & Row. And Time Magazine had contracted with Harper to essentially excerpt the work. I think it was 7500 words or so. But what happened was that The Nation Magazine scooped Time, and ended up publishing only 300 words of the memoir. But what happened was that those 300 words were essentially, if memory serves me correctly, why President Ford pardoned President Nixon. So even though it was only 300 words, it went to the heart of the work. So that’s the qualitative portion of it.
So they said, ‘This isn’t Fair Use at all.’ And you can imagine, because someone scooped somebody else, it was just a bad faith move. You can just guess that they weren’t going to win. But there’s that qualitative nature. So whatever you’re taking, look to see not only, ‘How much am I using?’ But, ‘What am I actually taking? Am I taking the main portion of this work?’ So that should go into your analysis. And this is where they ask, ‘Well, could you have licensed it?’ If the answer to that is yes, that factor will go against you. But this also goes towards purpose, and how that’s tied in.
So if you’re using it for research purposes or private purposes, there may not be a huge effect on the market. But if you’re using it for commercial purposes–writing a book, trying to sell it, publish it–that’s probably going to be a factor against you. So then what happens is that the courts–really, I guess, the judges, or, if you’re not even at that stage, lawyers like me–we look at all four factors in totality and then determine whether or not something is going to be Fair Use. It’s on a case by case basis, because courts have not followed precedent. So that’s why it’s so context dependent. So when I get questions in general, I can’t answer them because I need the context behind it.
Carla King 29:45
And the context is changing with technology. And we can’t even address the whole AI mess here, and what that’s doing to transformative works, and writing bots, and things like that. But that’s super interesting. Well, I mean, there’s enough here–Fair Use is hard enough for authors. And thank you for providing guidelines for us. Really appreciate your clarification. And I’d love for you to talk about our course. We’ve invited Joe to create a small course–a Flash Course–called Legal Issues For Authors. Can you talk about that? What do you cover?
Joe Perry 30:24
Yeah. So Fair Use is part of this. So I talk about the basics of copyright law, trademark law, libel, right of privacy, right of publicity, which is a form of writer’s privacy. And Fair Use in the copyright area, and how that affects writers, publishers, editors. It’s really a 101 type of class. I actually have another class as well–a flash course on book contracts.
Carla King 30:53
Oh yay.
Joe Perry 30:54
Yeah. But for our purposes today–the Legal Issues For Authors, this is just a portion of the course itself. I think it’d be really helpful.
Carla King 31:06
It will and libel and slander is also a popular subject, especially for memoir, you know. Thanks again for being our guest today.
And thank you to our listeners for joining us today and every week. For a list of guests and topics just check our schedule on the site, use your favorite search engine, or better yet, sign up for our mailing list at NonfictionAuthorsAssociation.com.
https://nonfictionauthorsassociation.com/flash-courses-for-authors/
LEGAL ISSUES FOR AUTHORS COURSE
In this detailed self-study course, led by literary attorney Joseph Perry, you will learn about essential basics of copyright law, how to protect your work, and how to use copyrighted content. You will also learn about trademark law, what you can and cannot use in your own work, and how trademarks can protect certain types of work. You will also discover various ways you can protect yourself against libel and right of privacy, whether you’re writing a memoir, prescriptive nonfiction, narrative nonfiction, or other genres.
Quotes from our guest
“They’re essentially asking, ‘Why are you using this work? What are you doing with it?’ The whole point of copyright law is to progress the arts and the sciences. So what are you doing with that work? With whatever you’re taking? Are you just copying and pasting it because it adds some sort of vibe to your novel, or book, or whatever it may be? Or are you bringing in that content so you can educate the reader?”
“…I always say–if you can, try to transform the content. That’s really the big factor. And the other big factor is the effect on the market. An article that I was just sharing with friends–that’s totally different than me writing it [on something].”
“At the end of the day, make sure you’re giving the reader a reason to see why you’ve brought this into the fold. Again, just think of–are you progressing the arts and sciences here? Or are you just copying and pasting because it’s cool? Are you using it because you like the effect of something? That’s not enough for a court to say, ‘Yeah, sure. That’ll be okay.’ You really have to bring something new to the table.”
“So if you’re using [material] for research purposes or private purposes, there may not be a huge effect on the market. But if you’re using it for commercial purposes–writing a book, trying to sell it, publish it–that’s probably going to be a factor against you. So then what happens is that the courts–really, I guess, the judges, or, if you’re not even at that stage, lawyers like me–we look at all four factors in totality and then determine whether or not something is going to be Fair Use. It’s on a case by case basis, because courts have not followed precedent. So that’s why it’s so context dependent.”
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