What's Considered Fair Use and What Isn't?

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Q: Is it necessary to ask permission to reprint an article if the reprint is used in a strictly academic setting?—Anonymous

A: Title 17, Chapter 1, Section 107 of the U.S. code states that “the fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright.” But not all material is protected for your free use. There are provisions, and our legal expert Amy Cook says the writer must weigh some factors before considering the work fair game.

“If an article on a hot issue was published, and you distribute it to a large class without permission—ostensibly to examine the writing style—those students wouldn’t go buy the magazine,” Cook says, and the magazine would lose sales. “You can’t destroy the market value for the original.”

Courts also take into account whether the original work is more factual (which more readily falls into a fair use) or if it’s more creative (less likely to be a fair use). The amount and substantiality of the portion used in relation to the copyrighted work can come into question, too; so taking an entire article is risky.

“The bottom line is that writers or users should take only the smallest amount they need to comment on it,” she says. “The mere fact that it’s an academic use doesn’t automatically protect you. If in doubt, simply get permission.”

Brian A. Klems is the online managing editor of Writer’s Digest magazine.

Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwpubs.com with “Q&Q” in the subject line. Come back each Tuesday as I try to give you more insight into the writing life.

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