FAIR USE FOR NONFICTION AUTHORS
Brianna L. Schofield · Robert Kirk WalkerFAIR USEFOR NONFICTIONAUTHORSCommon Scenarios withGuidance from Community PracticeAuthors Alliance · No. 3
2017 Authors Alliance, CC BY 4.0Brianna L. SchofieldRobert Kirk WalkerYou are free to:Share: copy and redistribute the material in any medium or format.Adapt: remix, transform, and build upon the materialfor any purpose, even commercially.The licensor cannot revoke these freedomsas long as you follow the license terms.Under the following terms:Attribution: You must give appropriate credit, provide a link to the license, andindicate if changes were made. You may do so in any reasonable manner, but not inany way that suggests the licensor endorses you or your use.No additional restrictions: You may not apply legal terms or technological measuresthat legally restrict others from doing anything the license 0No Legal Advice: While this guide provides information and strategies for authors whowish to understand fair use, it does not apply this information to any individual author’sspecific situation. This guide is not legal advice nor does using this guide create anattorney-client relationship. Please consult an attorney if you would like legal advice aboutyour rights, obligations, or individual situation.Typeset by Jasmine Rae Friedrich in Titillium, Open Sans and Merriweather.
FAIR USEFOR NONFICTIONAUTHORSCommon Scenarios with Guidance fromCommunity PracticePREPARED FOR AUTHORS ALLIANCE BY:Brianna L. SchofieldRobert Kirk WalkerCOORDINATING ORGANIZATIONS:Authors AllianceSamuelson Law, Technology, and Public Policy ClinicENDORSING ORGANIZATIONS:American Council of Learned SocietiesAssociation for Information Science and TechnologyA note for members of international organizations: While similar limitations exist in othercountries, the information in this guide applies only to fair use under United States law.
ACKNOWLEDGEMENTS:We extend our gratitude to the many people whocontributed their time, insight, and expertise to thisproject. We are grateful for the excellent researchand analysis conducted by Casandra Havens, IsabelleHutchings, and Christopher Yandel, law students at theSamuelson Law, Technology & Public Policy Clinic atBerkeley Law.Special thanks to Professors Patricia Aufderheide and Peter Jaszi for their invaluable guidance andsupport throughout the project. Their book, Reclaiming Fair Use, provided background instrumental to thisproject, as well as content that was adapted for use inthis guide. This project would not have been possiblewithout the fair use practices and limitations identified by authorial communities in their respectivestatements of practices. We thank the documentaryfilmmaker, journalism, media studies, online video,open courseware, poetry, scholarly research in communications, and visual arts communities for the insightswe gained from their respective statements of bestpractices.
We are also grateful to the nonfiction authors andcopyright experts who generously shared their experiences in interviews and survey responses. This guidewould not be a useful resource for the nonfiction authorcommunity without the benefit of their stories andknowledge.We are indebted to Michael C. Donaldson, Jacqueline Lipton, Jessica Litman, Pamela Samuelson, RebeccaTushnet, Jennifer M. Urban and Molly Shaffer VanHouweling for their review and helpful comments ondrafts of this guide. Mistakes are ours alone.Finally, thank you to all Authors Alliance members:Your support makes all our projects possible.
TABLE OF CONTENTSI.Introduction2Who is this guide for?4How was this guide created?5What this guide isn’t8II.Fair Use Fundamentals12III.Fair Use Approaches to CommonSituations Faced By Nonfiction Authors18One: Criticizing, discussing, orcommenting on copyrighted material21Two: Using copyrighted material to illustrate,support, or prove an argument or a point28Three: Using copyrighted material fornon-consumptive research36Frequently Asked Questions44Can I still claim fair use if I am usingcopyrighted material that is highly creative?45Can I still claim fair use if I am usingcopyrighted material for commercial purposes?46IV.
Can I still claim fair use if I ask the copyrightowner for permission to use the materialand permission is refused?46Can I still claim fair use if I want to usecopyrighted material that is unpublished?47Are charts, graphs, and tables protectedby copyright and, if so, can I rely on fair useto incorporate them into my nonfiction work?48How does a work’s copyright statusaffect fair use?49How does a work’s orphan workstatus affect fair use?49Can contractual terms governing accessto a work restrict the availability of fair use?50Does the information in this guide stillapply if my work will be published outsideof the United States?51Does the fair use analysis change whenthe copyrighted material I want to use isowned by a litigious estate?52What can I do if my publisher asks me toobtain permission instead of allowing meto rely on fair use?53
V.Does fair use protect against claims based onlegal rights other than copyright, such as privacyrights, trademark, defamation, right of publicity,and more?53BEYOND FAIR USE56Appendix: Principles and Limitationsfrom Existing Statements of BestPractices in Fair Use64Table 1: Criticizing, Discussing, orCommenting on Copyrighted Material66Table 2: Using Copyrighted Material to Illustrate,Support, or Prove an Argument or a Point74Table 3: Using Copyrighted Material forNon-Consumptive Research82Endnotes84Index94
I. INTRODUCTION
Nonfiction authors often use existing materials intheir works: A historian excerpts a soldier’s lettersto a loved one; an art critic reproduces a telling detailin a painting; a scientist quotes from a well-knownarticle. Readers of nonfiction works expect new writingto reference and incorporate other works; indeed, thequality and integrity of nonfiction works frequentlydepend on the author’s skillful use of such materials.Although drawing from other works is common, it canoften seem difficult to know when (and how much)unlicensed copying is permissible and whether certainunlicensed uses of another’s work put you at risk of1copyright infringement.Sometimes, authors need to seek permissionor pay for a license to use copyrighted materials. Anauthor may even need a license to use her own works
because she signed over her copyrights to her publisher.But not always. In some situations, unlicensed use maybe legally permitted by virtue of the “fair use” doctrine,a well-known (but oft-misunderstood) limitation to2copyright in the United States. Fair use is a powerfultool, but unfortunately many nonfiction authors findit tricky to know when to rely on fair use and when toseek permission. That’s where this guide comes in.In addition to providing background informationon copyright law and fair use, this guide identifies threecommon situations that nonfiction authors encounterwhen incorporating existing materials into their worksand then discusses general fair use principles and limitations that apply in these situations. This guidance isbased on broadly shared norms found in the leading fairuse statements of best practices, as well as existing case3law. We hope this guide will help demystify fair use for4nonfiction authors.WHO IS THIS GUIDE FOR?Are you a nonfiction author? Have you ever wanted to knowwhether you needed permission or a paid license to use4Fair Use For Nonfiction Authors
copyrighted material in your work? Would you like to learnmore about fair use?If you answered yes to these questions, then readon! This guide is designed for all nonfiction authors—from biographers to science writers, historians toliterary critics, memoirists to academics, and beyond—who want to know more about using copyrightedmaterials. This guide will help nonfiction authors whowant to do things like: Include song lyrics in an academic paper discussing musical trends; Quote from a novel to analyze the author’s use ofmetaphors in a work of literary criticism; Incorporate a photograph in an article about thephotographer’s use of light and shadow; Use a chart in a scientific paper critiquing aresearcher’s methodology and findings; or Quote from unpublished letters in a memoir.HOW WAS THIS GUIDE CREATED?This guide was prepared by the Authors Alliance, anonprofit organization that provides educationalmaterials and advocates for the interests of authorsIntroduction5
who want to share their creations broadly in order toserve the public good. To further this mission, AuthorsAlliance created this guide to help nonfiction authorsunderstand reasonable strategies for the application offair use in common situations that nonfiction authorsencounter. In this way, Authors Alliance hopes to helpnonfiction authors to create their best possible works,distribute those works widely and, in turn, enhance thepublic’s access to knowledge and culture.This guide is based on the common situationsin which nonfiction authors incorporate copyrightedmaterials into their works. In order to identify thesescenarios, we interviewed and collected surveys fromnonfiction authors, scholarly communications officers,and copyright experts. We are grateful for the partnership of the American Association of UniversityProfessors, the American Council of Learned Societies,the American Historical Association, and the ModernLanguage Association, who helped us to reach a widerange of nonfiction authors by distributing the surveyto their members. In total, we were in contact withmore than sixty nonfiction authors and experts who6Fair Use For Nonfiction Authors
shared nearly 150 stories about their experiences. Inparallel with this outreach, we consulted sixteenexisting fair use best practices statements developed5by other authorial communities. In general, theissues most frequently addressed in these fair use bestpractices statements overlapped with the issues thatnonfiction authors raised in our interviews and surveys.After identifying the common situations that nonfiction authors encounter, we conducted an analysisof the sixteen existing best practices statements toanalyze the principles and limitations other authorialcommunities have deemed applicable to these situations. As others have noted, a “meta-consensus” isemerging across various fields on how fair use applies6to given scenarios. From this body of work, we identified and distilled common approaches to thesesituations. In some places, we have directly incorporated language from existing codes. In addition, weconsulted existing fair use case law to provide realworld examples of how these common situations havebeen resolved in court.Introduction7
WHAT THIS GUIDE ISN’TWhile this guide provides information and strategiesfor authors who wish to better understand how fair useworks in the United States, it does not apply this information to any individual author’s specific situation.This guide is not legal advice, nor does using this guidecreate an attorney-client relationship. Because theapplicability of fair use is context-dependent, thisguide does not provide bright-line tests or rules for anylegal analysis of fair use. The examples here are meantto illustrate common scenarios in which fair use doesapply, but they may not apply in your case. Authors’ability to use copyrighted works may also be limitedby restrictions other than copyright (e.g. contractualrestrictions or privacy laws).Although all countries include some accommodations for use of copyrighted works in their national7laws, copyright law varies by country and the information in this guide applies only to the use of copyrightedmaterial in the United States (regardless of wherethe copyrighted material originates). This guide doesnot cover reproductions, distributions, performances,8Fair Use For Nonfiction Authors
or other uses outside of the United States, includingweb-based uses specifically targeted toward othercountries, to which those countries’ laws may apply.This document also does not delineate the limitsof fair use rights, nor is it an exhaustive guide to allpossible applications of fair use. Fair use extendsbeyond what this guide covers. Indeed, nonfictionauthors may make compelling arguments for fair useeven outside of the scenarios identified in this guide.Moreover, fair use is not static. It evolves in responseto technological changes and, over time, will likely8encompass uses that are not addressed in this guide.In addition, nonfiction authors may be able to use copyrighted works based on considerations apart from fairuse (e.g., based on permission granted under the termsof a Creative Commons license).Finally, nonfiction authors do not need to rely onfair use for works that are in the public domain (eitherbecause they were never subject to copyright protectionor because such protection has expired). But where awork’s copyright status is unclear, nonfiction authorsmay still want to understand whether the use of theIntroduction9
material would be permitted by fair use should thematerial be protected by copyright.Please consult an attorney if you would like legaladvice about your rights, obligations, or individualsituation.10Fair Use For Nonfiction Authors
II. FAIR USEFUNDAMENTALS
The text of this Section is adapted (with permission) fromlanguage evolved in previous best practices statements andused by Patricia Aufderheide and Peter Jaszi in Reclaiming FairUse: How to Put Balance Back in Copyright (University of ChicagoPress 2011).COP Y R IG H T L A W P R O TE C TS C R E A TIVE W ORKSin order to foster the creation of culture. Its bestknown feature is protection of owners’ rights. Butcopying, quoting, and generally reusing existingcultural material is critically important to generatingnew culture. In fact, the cultural value of copying isso important that it is written into the social bargainat the heart of copyright law. The bargain is this: Weas society give limited rights to creators to encouragethem to produce culture; at the same time, we give
other creators the chance to use that same copyrighted material, without permission or payment, in somecircumstances. Without the second half of the bargain,we could all lose important new cultural work.Fair use is a feature of copyright law that, undercertain conditions, permits quotations from copyrighted works without permission or payment. Where itapplies, fair use is a user’s right. In fact, as the SupremeCourt has pointed out, fair use keeps copyright fromviolating the First Amendment, as new creationsinevitably incorporate existing materials. As copyrightprotects more works for longer periods than everbefore, creators face new challenges: Obtaining licensesto incorporate copyrighted sources may become moreexpensive and more difficult. Sometimes, licensesmay simply be unavailable. As a result, fair use is moreimportant today than ever before.By design, copyright law does not precisely specifyhow to apply fair use. This gives the fair-use doctrine aflexibility that works to the advantage of users and thepublic. Rather than following a specific formula, courtstake into account all the facts and circumstances of a14Fair Use For Nonfiction Authors
specific case to decide if an unlicensed use of copyrighted material is fair. For this reason, whether anunlicensed use of copyrighted material is “fair” differswith the creative field, with technology, and with time.In weighing the balance at the heart of fair-useanalysis, judges are required to weigh four statutoryfactors: the purpose of the use, the nature of the workused, the extent of the use, and its economic effect.This still leaves much room for interpretation, especially since the law is clear that these are not the onlypermissible considerations. Despite its flexibility,however, fair use is not unreliable. In reviewing thehistory of fair-use litigation, we find that judges returnagain and again to two key questions: Did the unlicensed use “transform” the materialtaken from the copyrighted work by using it for adifferent purpose or giving it a different meaningthan that of the original, or did it just repeat thework for the same intended purpose and value asthe original?Fair Use Fundamentals915
Considering the nature of the copyrighted workand the challenged use, was the material takenappropriate in kind and amount?If the answers to these two questions are “yes,” a courtis more likely to find a use fair. Because that is true,such a use is less likely to be challenged in the firstplace.Both questions are related to whether the use willcause excessive economic harm to the copyright owner.While copyright owners aren’t entitled to an absolutemonopoly over all uses of their works, when a usesupplants a copyright owner’s core market it is unlikelyto be fair. For example, a textbook author cannot quotelarge parts of a competitor’s book merely to avoid thetrouble of writing her own. Whether the user acted reasonably and in good faith, in light of general practice inhis or her particular field, may also influence a judge’sfair use determination.Fair use is widely and vigorously used in manyprofessional communities. Historians regularly quoteother historians’ writings and textual sources; film-16Fair Use For Nonfiction Authors
makers and visual artists use, reinterpret, and critiquecopyrighted material; scholars illustrate cultural commentary with textual, visual, and musical examples. Insome instances, authorial communities have set forththeir understandings of fair use in best-practice guides.This guide draws on these guides, from the experienceof nonfiction authors themselves, and from relatedlegal precedents. Read on to learn more about how fairuse may apply to common situations faced by nonfiction authors.Fair Use Fundamentals17
III. FAIR USEAPPROACHESTO COMMONSITUATIONS FACEDBY NONFICTIONAUTHORS
THIS SE CT I ON D IS C US S E S C O M M O N S I TUA tions faced by nonfiction authors in which fair use mayapply. While there are seemingly endless ways that acopyrighted work might be used, nonfiction authorsoften want to either (1) criticize, discuss, or commenton copyrighted material or (2) use the copyrightedmaterial to support a point made in the author’s work.Another use that is increasingly relevant to nonfictionauthors is (3) using copyrighted material for non-consumptive research (e.g. copying works into digital databases in order to perform computational analysis acrosstexts and/or images). This section provides examplesof ways that nonfiction authors encounter these threesituations, shares the fair use principles that creativecommunities and courts apply in similar situations, and
explains the limitations that apply to these principles.It also provides some real-world examples of how thesesituations have been treated in the courts and tests yourknowledge through hypotheticals.At the outset, it is important to note that thesesituations are concerned not with what the copyrightedmaterial is (e.g., a poem, a song, a line of softwarecode, etc.). A common misunderstanding is that fairuse outcomes are highly dependent on whether thematerial being used is textual versus musical or visual,highly creative versus factual, or unpublished versuspublished. Though the “nature of the copyrighted work”is a factor in fair use analysis, other factors tend tocarry far greater weight. Chief among them is whether anew use is sufficiently “transformative” of the originalwork, meaning that the new work alters the originalwith “a further purpose or different character, alteringthe first with new expression, meaning, or message.”10Therefore, considering the purpose behind an intendeduse is of paramount importance in determiningwhether the use is fair or infringing, and the principlesand limitations described below apply regardless of thetype of copyrighted material being used.20Fair Use For Nonfiction Authors pa
fiction authors encounter, we conducted an analysis of the sixteen existing best practices statements to analyze the principles and limitations other authorial communities have deemed applicable to these situ-ations. As others have noted, a “meta-consensus” is emerging across various fields on how fair use applies
Bruksanvisning för bilstereo . Bruksanvisning for bilstereo . Instrukcja obsługi samochodowego odtwarzacza stereo . Operating Instructions for Car Stereo . 610-104 . SV . Bruksanvisning i original
scaffolds for nonfiction reading and nonfiction writing into the fabric of daily literacy instruction, making sure that children write for a wide variety of purposes and experience a broad array of nonfiction text types (Hoyt, 2009, 2004; Stead, 2007, 2002; Saunders-Smith, 2010, Glover, 2009). Explorations in Nonfiction Writing When I write, I .
Jess Lair PhD and Jacqueline Carey Lair NonFiction 1973 1 Prayer "If Mr. Clean Calls, Tell Him I'm Not In" Martha Bolton NonFiction 1989 1 Humor 199 Promises of God Barbour Publishing nonfiction 2007 1 bible study A Beacon In the Darkness: Reflecting God's Light in Today's World David Roper NonFiction 1995 1 Lifestyle A Bible Study On Becoming
10 tips och tricks för att lyckas med ert sap-projekt 20 SAPSANYTT 2/2015 De flesta projektledare känner säkert till Cobb’s paradox. Martin Cobb verkade som CIO för sekretariatet för Treasury Board of Canada 1995 då han ställde frågan
service i Norge och Finland drivs inom ramen för ett enskilt företag (NRK. 1 och Yleisradio), fin ns det i Sverige tre: Ett för tv (Sveriges Television , SVT ), ett för radio (Sveriges Radio , SR ) och ett för utbildnings program (Sveriges Utbildningsradio, UR, vilket till följd av sin begränsade storlek inte återfinns bland de 25 största
Hotell För hotell anges de tre klasserna A/B, C och D. Det betyder att den "normala" standarden C är acceptabel men att motiven för en högre standard är starka. Ljudklass C motsvarar de tidigare normkraven för hotell, ljudklass A/B motsvarar kraven för moderna hotell med hög standard och ljudklass D kan användas vid
LÄS NOGGRANT FÖLJANDE VILLKOR FÖR APPLE DEVELOPER PROGRAM LICENCE . Apple Developer Program License Agreement Syfte Du vill använda Apple-mjukvara (enligt definitionen nedan) för att utveckla en eller flera Applikationer (enligt definitionen nedan) för Apple-märkta produkter. . Applikationer som utvecklas för iOS-produkter, Apple .
New York Times bestseller, audio nonfiction, September 2019. Los Angeles Times bestseller, nonfiction, February 2019. Top 10 Amazon Charts bestseller, nonfiction, August 2019. Top 10 Audible.com bestseller, nonfiction, August 2019. Robert H. Ferrell Book Prize, So
