IP Law Series: Fair Use Exceptions

Last week I began publishing a series of posts about intellectual property law. I am already overwhelmed with joy at the positive feedback the series is getting! This week’s post is all about fair use exceptions, which apply to copyrighted works. For a quick refresher on the differences between trademark and copyright, click here to read my first post.

Before we begin, my usual disclaimer: I am not an attorney. This is not legal advice.

That said, let’s dive right in! Fair use exceptions are a fundamental aspect of IP law. They are, in part, what allow me to even write this series to begin with.

Definition

Fair use exceptions are uses of copyrighted material that can be defended against infringement claims and do not require prior permission from the copyright holder. The most common fair use exceptions include educational purposes, commentary/criticism, and parody.

Examples

Using a still shot from a movie in a critique would almost certainly fall under fair use, as long as its purpose in the movie review is clear. My blogger friend Makhail writes many film reviews, and he does an excellent job of staying well within the bounds of fair use.

Copying a quotation or short passage from a book for a book review would also likely fall under fair use. Virtually every book review I publish here on the blog includes such quotations, which I use to illustrate points in my commentary.

Re-writing a famous poem as a parody would also likely be fair use. One of my personal favorite examples of parody is the YouTube channel Honest Trailers, who uses actual clips from films and creates a new trailer mocking them with satire.

The Good, the Bad, and the Ugly

Arguably the best part of fair use exceptions is also the worst part: there are no hard and fast rules.

On the one hand, this is excellent news for all of us – whether we create or consume – because it means that the definition may continue to be expanded in our favor through case law.

On the other hand, this means that steering clear of infringement is never going to be totally foolproof. What one copyright holder feels is infringement, another may not. The line between fair use and infringement can easily become vague, particularly when the limits of the law are pushed.

For example, virtually everyone would agree that quoting a single sentence from a copyright-protected novel in a book review easily falls in fair use territory. It is also inarguable that copy and pasting the entire novel into said review would be infringement. But exactly how long of a passage is it OK to quote before it simply becomes piracy? The answer is for the copyright holder to decide (and then a judge, if it were to come to that).

So, do you have any questions about fair use exceptions that I didn’t cover in this week’s post? Please send all of your IP law questions my way, as I love going on a hunt for answers!

Until next time,

xoxo Charlotte

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9 comments

  1. I sometimes use song lyrics as a writing prompt. Without them in the essay, nothing makes sense. I’ve done some research, and this appears to be a violation of the copyright. So, on a blog this probably isn’t a big deal. I doubt if anyone would say anything. And if they did, it’s simple to delete or rewrite the post. I have a story that will wind up in a book one day that starts with a Patti Smith lyric. I’ve tried to contact “her people” but never heard anything back. I’d hate to assemble a book and then have to unpublish it (or worse) because of a violation. What’s your (unprofessional) opinion?

    Liked by 1 person

    • So, when I first read your comment, the first person that popped into my head was fantasy author Kevin J. Anderson, whom I’ve seen speak a couple of times. He regularly uses lyrics from Rush songs at the beginnings of his books, so my initial inclination when reading your question was that there might be a way to do so legally.

      What’s interesting is that when I researched how Anderson approached the issue, he apparently did so in blatant copyright violation. According to an interview with him, he simply used their lyrics in one of his books, then actually sent a copy of the book to Rush. Luckily for Anderson, they not only didn’t have an issue with the copyright violation, but they ended up partnering with him on future collaborations.

      I’ve got to imagine, though, that his experience is not the norm. As you have seen in your research, unfortunately using song lyrics in a book without prior written permission from the copyright holder is a violation. I’m sure you’ve also seen these, but using a song title or album title is perfectly fine though!

      As far as contacting Patti Smith, did you contact the publisher or her representatives?

      Liked by 1 person

      • I contacted her representatives. I’m not sure who the publisher would be… her record label? I have a hard time believing that any one would come after a self-published book, but I thought it best to try to cover my bases. I’ve also thought about rewriting the beginning to just avoid the issue. I think it’s interesting that you’re writing about IP law. The topic bores me. I used to go to a writers group, but at every meeting one guy would start in with questions and concerns about copyrighting his material. I couldn’t stand it so I quit going.

        Like

  2. Again, you’ve explained this succinctly and thoroughly to reinforce facts I already believed were true anyway. I like having my beliefs reinforced 😂 The problem with copyright is that it is very grey. It all seems to come down to how uppity or defensive the copyright holder is as to whether they term something as fair use or plagiarism. I imagine some will also push for defamation when they receive bad reviews too.

    Liked by 1 person

    • Oh I wholeheartedly agree that the biggest problem with copyright law is how very grey it is. I will admit that I tend to desire hard and fast rules about things, and copyright law is anything but that.

      You are 100% correct in your conjecture. When violation notices get issued and then disputed, it often isn’t justice that prevails – it’s whoever has the deepest pockets that prevails, and we all know that means the big companies.

      Liked by 1 person

      • That literally should have no bearing on anything. The fact I’d likely lose a lawsuit against, let’s say Penguin for arguments sake, just because they’re a large corporation and can afford better and/or more defence barristers even if my position is solid is entirely unfair. This is why laws and legislation are extremely questionable in their entirety.

        Liked by 1 person

  3. aww. thanks for mentioning me. Apologies for a late response, I’ve just not been all that active online recently haha.
    Awesome blog, I do love to read about fair use in my own time (though you’ve summarised it up really well. Good job!)

    Liked by 1 person

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