Fair Use Legal Lingo You Can Understand

Copyright laws and fair use still got you confused? We asked WD legal eagle Howard Zaharoff, a lawyer in Waltham, Mass., to explain all those invisible boundaries concerning the fair use of song lyrics and literary works.
Author:
Publish date:

How much use is a fair use? My article in a recent issue of WD analyses the 4 (non-exclusive) Copyright Act fair use factors: (1) the purpose of the use, (2) the nature of the original work, (3) the amount used and its significance in relation to the original and (4) the use''s effect on the market or value of the original.

So what constitutes fair use of song lyrics and literary works?

Songs are generally short and imaginative. Borrowing even a line or two generally means taking a generous portion of creative expression—a loss under factors (2) and (3). Since the music industry actively licenses the use of lyrics (generally for fees ranging from $25 to $250), copying also means a loss under factor (4) ... and a music publisher after you!

Where the nature of your work requires quoting reasonably from the lyrics—e.g., you''re a music teacher or critic writing an analysis or review—you probably win under factor (1), which may be enough. (Parodies also get special privileges—but beware, they often attract lawsuits!). But don''t make other uses—to introduce chapters in your book, say—without permission.

In terms of quoting literary works, no definite guidelines exist. For the right purpose (e.g., to rebut a scandalous parody or to expose the racist views of a police officer), courts have allowed copying an entire work. For the wrong purpose (e.g., The Nation scooping publication of Gerald Ford''s memoirs by quoting several hundred words on the pardon of Richard Nixon), the courts have prohibited quoting less than 1 percent.

In most cases, quoting one or two sentences (100 or so words) from a published book-length work or lengthy article, for good reasons and with attribution, will be held fair use, whereas quoting 20 percent or more of any work will usually not be considered fair use. But in each case the answer depends on the 4 factors. So really, all you can do is apply these factors and, in close cases, consult a copyright lawyer or request permission.

Final warning: Even copyright lawyers can guess wrong. How much do you want to spend on legal defense to learn if they''re right? So unless your use is unquestionably a fair use, always consider whether permission is timely and affordably available.


WD Webinar:
Want more legal advice? Consider:

Legal Issues Affecting Writers

Image placeholder title

Also:
Become a Writer's Digest VIP:
Get a 1-year pass to WritersMarket.com, a 1-year subscription to Writer's Digest magazine and 10% off all WritersDigestShop.com orders!Click here to join.



GettyImages-119430542

Your Story #112

Write the opening line to a story based on the photo prompt below. (One sentence only.) You can be poignant, funny, witty, etc.; it is, after all, your story.

Self-Published Ebook Awards

Announcing the 8th Annual Self-Published E-book Awards Winners

Congratulations to the winners of the 8th Annual Self-Published E-book Awards! Discover the titles that placed in the categories of contemporary fiction, fantasy, memoir, mystery, and more.

Greg Russo: On Writing a Film Based on a Video Game

Greg Russo: On Writing a Screenplay Based on a Video Game

Professional screenwriter Greg Russo discusses the joy and challenge of converting a popular video games series into a screenplay and the balance of enticing a new audience while honoring a franchise's fans.

April PAD Challenge

2021 April PAD Challenge: Day 16

Write a poem every day of April with the 2021 April Poem-A-Day Challenge. For today's prompt, write a city poem.

Plot Twist Story Prompts: Under the Influence

Plot Twist Story Prompts: Under the Influence

Every good story needs a nice (or not so nice) turn or two to keep it interesting. This week, let a character fall under the influence of something or someone.

WD-PersonalEssay-2020-WinnerGraphic

Suspended: Writer's Digest Personal Essay Awards Winner

Congratulations to J.E. Stamper, grand prize winner of the Writer's Digest Personal Essay Awards. Here's his winning essay, "Suspended."

Planting Clues: Red Herrings That Fool but Don't Frustrate Your Readers

Planting Clues: Red Herrings That Fool but Don't Frustrate Your Readers

Want to know how to keep your readers engaged and entertained with your mystery novel? Let these six tips from thriller author Kris Calvin guide you!

April PAD Challenge

2021 April PAD Challenge: Day 15

Write a poem every day of April with the 2021 April Poem-A-Day Challenge. For today's prompt, write a blank story poem.

Kristin Beck: On Writing Quickly and Publishing Slowly

Kristin Beck: On Writing Quickly and Publishing Slowly

Debut novelist Kristin Beck shares what it was like to write her historical fiction novel Courage, My Love and why she was so thankful for a slow publishing process.