In light of the recent article in The New York Times about Time Magazine and Politico posting the entire Rolling Stone article on Gen. McCrystal without permission, we wondered how this might affect today’s writers.
Many writers like to use “snippets” of others’ material previously written yet other writers risk using larger portions bordering on the side of plagiarism or under the guise of “remixing” others’ works.
But how does a writer do so without disrespecting another writer’s hard work or worse yet encountering a law suit? To find out more about this, we asked veteran publishing attorney, Lloyd Jassin about this issue.
Q: I have a new book I’m writing called, “No More Wire Hangers: Life Lessons from Mommy Dearest”? It’s a book that features specific lines of dialog and scenes from the movie and what I learned from them, how they can be applied in real life. Do I have to have permission from the studio to do it? How can I get around the whole copyright issues and still do the book?
A. How do you get around the copyright issues and do the book? It hurts me to say this, but, the answer is, “It depends.” My baseline assumption is that it is a legitimate book of life lessons learned from the movie — not an attempt to hijack the goodwill associated with the movie and create you own unauthorized tie-in book. That is, the book contains legitimate commentary or criticism and does not undercut the producer’s chance to sell or license their own book tie-in.
Fair use protects certain socially productive uses. When fair use exists, you can copy a work without permission. So, by relying on fair use, authors like yourself may be able to avoid the expensive habit of obtaining written permissions. To understand fair use, you need to understand the purpose of copyright law. Copyright law tries to balance protection and innovation. While you have an interest in using material under copyright to express yourself, the copyright owner of the film has an economic interest in its very expensive movie. While those interests may appear to be in conflict, they are, in fact, closely aligned. Access and use of a work without permission (or payment), arguably, limits the availability of creative works because creators (in this case a large studio) would no longer have a financial incentive to create. And, while protecting copyrights encourages the progress of art and science, too much protection can stifle creativity and innovation. Fair use balances the economic interests of owners and users of copyrights. It’s the ammunition – or defense – you will use if the copyright police come after you. Which brings me to my next point, fair use is not a right, but a defense to copyright infringement.
While it easy for human beings to rationalize most things, including copyright infringement, courts struggle with fair use determinations. When they hold that a particular use is a fair use, they are actually saying, “overprotecting this work would be more harmful to the public good than underprotecting it.” Like pornography, fair use is in the eye of the beholder. It is an equitable (and malleable) doctrine that asks, on a case-by-case basis, whether the unauthorized use advances the purposes of copyright law. Unfortunately, there are no mechanical rules to define with precision what is “fair” and what is “foul.” So, without reading your manuscript, I couldn’t say that this is a situation in which a fair use defense would prevail. What I will say is, fair use offers authors like you certain creative freedoms. Fair use favors commentary, news reporting, education and scholarship. To be clear, just because something falls under the heading commentary, news reporting, education or scholarship doesn’t mean it is automatically protected as a fair use. Courts are sympathetic to such uses, but, even a not-for-profit educational use, can be an infringing use.
So, what’s the take away? Familiarize yourself with fair use. There are four fair use factors that courts look at. No single factor is determinative. The first factor is how the borrower uses the original work. Is the use for some public good? Has the user somehow transformed the work into a new mode of expression with new insight or meaning? Courts and copyright attorneys love transformative uses, whether criticism or commentary. The second factor courts look at is the nature of the original work. Generally, the more creative the work, the greater the protection it receives. The third fair use factor considers the amount and importance of what was borrowed. While wholesale copying is not automatically outlawed, as a rule, less is more for purposes of fair use. You’ve heard the expression, “Take what you need and leave the rest,” used in a different context. Well, it also applies in the context of fair use. Take what you need to make your point, and leave the rest. The fourth and final factor looks at the economic impact the new use has on the market for the original work. The Mommy Dearest Aptitude Test with a plot synopsis and trivia questions and answers about the events and characters from the movie is closer to a traditional movie tie-in book than The Zen of Joan Crawford . As you can expect, the fourth factor is given a lot of weight by courts. Copyright is, after all, an economic construct. Of course, a critical review which hurts the demand for the original is not the kind of harm copyright law seeks to prevent. So, a bad review in The New York Times Book Review, which quotes from your book and kills the demand for your it isn’t enough provocation to bring a copyright infringement lawsuit.
Due to its unpredictable nature, fair use is not for sissies. When in doubt consult an attorney, or err on the side of caution and seek permission. Of course, if you wanted a safe profession, you wouldn’t have selected book publishing for a career.
Lloyd Jassin is a publishing and intellectual property attorney and a former book publishing executive. For more information about Lloyd Jassin visit www.copylaw.org or follow him on Twitter at www.twitter.com/lloydjassin.
THE INFORMATION PROVIDED ABOVE IS OF A GENERAL NATURE AND IS NOT INTENDED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC LEGAL ISSUE OR QUESTION, SEEK THE SERVICES OF A COMPETENT ATTORNEY.
Resources
Fair Use in a Nutshell by Lloyd J. Jassin at: http://www.copylaw.org/2010/03/fair-use-in-nut-shell.html