Book authors often like to use a quote from another literary work at the opening of their book chapters The question is whether using quotes in this way is a fair use. There is no bright line rule to determine what qualifies as fair use. Instead, courts use a four-factor test to make the determination. No single factor is determinative.
Using quotes at the beginning of your book chapters has to go through the same four-factor fair use analysis as any other material you want to use without authorization. Here’s my attempt at a fair use analysis for quotes used to open book chapters. This analysis is “generic” and will not apply to every quote to be used or every work in which an author wants to use a quote. An actual fair use analysis will differ according to the specific circumstances of each given case.
Factor One. How are you using the copyrighted work? For example, is your use for-profit or non-profit? Is your use transformative? Your use of a copyrighted work is transformative if your use is creatively different from the way in which the copyright owner used it. If you’re using the quote to illustrate a point in your instructional publication or commentary, that might qualify as a transformative use. On the other hand, it may hurt your chances for fair use if a court concludes you are using the quote only as a method of “ornamenting” your book.
Factor Two. What is the nature of the copyrighted work? Not everything is eligible for copyright protection. For example, there is no copyright protection for extemporaneous speech (that’s not recorded) and public domain material. Fact-based works like an encyclopedia have a lower threshold of copyright protection. At the other end of the spectrum, very creative works like song lyrics, poems, and feature films receive the maximum amount of copyright protection.
Factor Three. How much of the copyrighted work do you use? There is no set amount of a copyrighted work that guarantees fair use. However, it is true that the less of a copyrighted work you use, the more inclined a court will be to view your use as a fair use. A quote of ten words may be a significant portion of a song or a poem but a relatively insignificant portion of a ninety-minute movie or 250-page book.
Factor Four. Does your use harm the copyright owner's ability to market the work? The use of the quote at the beginning of the chapter is unlikely to stop anyone from going to see the movie, reading the full book, or purchasing a copy of the song. However, courts also often look at whether you have deprived the copyright owner of the license fee that it could have obtained from granting a license for the use of the quote.
Yes. I know the analysis is wishy-washy – but that’s the nature of fair use. Often, the decision of whether to rely on fair use comes down to a judgment call and/or risk assessment. There is always some level of risk when using someone else’s copyrighted work without authorization.