Guide Through the Legal Jungle

Using Quotes to Open Book Chapters

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.

Staying Legal When Using Quotes

In my entertainment and media law firm practice, I often advise producers on the legalities of incorporating outside materials into their work.  A typical question is whether permission is needed to quote from books, songs, and other creative works.

In this blog posting based on an excerpt from my book, The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks, and Other Rights for Entertainment and Media Productions, I highlight questions you should ask as you ponder whether “to quote, or not to quote”.

Is the Quote Copyright-Protected?  Books, articles, songs, poems, and other textual works are protected by copyright law whether they are published or unpublished. You need permission to quote from them unless an exception to copyright protection applies. Note that some categories of text are not copyright-protected. These include extemporaneous speech that is not recorded, short phrases and slogans, and works that are in the public domain.

Is the Quote in the Public Domain?  Copyright protection does not last forever. Once the copyright expires, the work falls into the public domain and you may quote or otherwise use it without permission. Determining the public domain status of a work gets tricky. As a result of numerous copyright law changes, different copyright durations apply depending upon the specific work's date of publication or date of creation.  Listen to my One Minute How-To Interview on determining whether a work is in the public domain.

If the Quote is Copyright-Protected, Does Your Use Qualify as a Fair Use?  Fair use allows you to use a reasonable portion of a copyrighted work without permission. Unfortunately, fair use has few bright-line rules. Contrary to myth, using fewer than 250 words does not place you in a fair use safe harbor. Instead, fair use is evaluated on a case-by-case basis. Your use is more likely to qualify as a fair use if the nature of your work is criticism, commentary, news, educational, or parody.

If You Need Permission, Whom Do You Ask?  Finding whom to ask is sometimes the most difficult part of getting permission. The internet is a useful tool for identifying and locating copyright owners. For books, check the websites of the publisher and the author. For magazines and other periodicals, check the publication’s website or a copy of the publication itself. If you need permission to quote lyrics, you can find the music publishers for many popular songs by searching the online song databases of ascap, bmi, harryfox, and sesac. 

How Do You Ask for Permission?  There is no magic method of requesting permission. Some large institutional copyright owners may offer an online permission request form. If you must draft your own request, give complete information about the material you want to use and how you want to use it.

What Can You Do if the Copyright Owner Says No?  Hopefully, the copyright owner will grant permission. However, the copyright owner might say no, demand a licensing fee that is too high, or just not respond at all. If that happens, you can try to tailor your use so that it qualifies as a fair use. However, as noted, fair use is subjective so this approach carries some risk. Sometimes the best approach is to find an alternative quote or to find a creative way to complete your work without directly using the quote.

What’s the Licensing Fee to Use a Quote?  Licensing fees for quotes have no firm standards and are completely negotiable. The licensing fee to quote from a book or periodical might be $25 to $200+. The licensing fee to quote lyrics might be a few hundred dollars to $1,000+. Criteria that impacts the licensing fee includes how well-known the quote is and how you plan to use the quote.

Round One Goes to EBay Auctioneer in Battle to Sell Used Software

Recently, I discussed the Vernor v. Autodesk case under the blog posting “Does Copyright Law Prohibit the Sale of Used Software on eBay?”.  After Autodesk got a few of Timothy Vernor’s auction listings for used copies of AUTOCAD bounced off of eBay, Vernor filed a lawsuit asking for a declaratory judgment that his sale of the used software was legal.

Rather than backing down, Autodesk asked for a dismissal of Vernor’s lawsuit or for a summary judgment ruling in its favor. The court refused Autodesk’s request. After doing numerous somersaults and back flips through diverging case law precedent, a federal court in the state of Washington decided that Autodesk had sold rather than licensed copies of AUTOCAD to a Seattle architecture firm.  The Seattle architecture firm subsequently sold the copies to Vernor. As a result, the first sale doctrine applies to the AUTOCAD copies and Vernor’s sale of the used AUTOCAD software on eBay is not copyright infringement.

I wish I could stop my blog entry right here and tell you that the court's ruling is the end of the story.  But that would make life too easy.  So I continue . . .

What Copyright Orphan Work Legislation Does and Does Not Do

The House and Senate are both considering versions of copyright orphan work legislation.

What’s an Orphan Work

Orphan works are copyrighted works whose owners are difficult or even impossible to locate. Producers frequently hit the brick wall of discovering that the music, photographs, text, or other creative content they wish to use is an orphan. Since there’s currently no free pass under copyright law for “really trying to find the copyright owner”, in orphan work situations, the producer has the options of

• using something else,
• trying to re-format the use so it qualifies as a fair use, and
• using the material anyway and facing the risk of a rights holder emerging and demanding a license fee or other remedy – with no requirement that the rights holder be “reasonable” in his/her demands.

Purpose of Orphan Work Legislation

The pending orphan work legislation would restrict the copyright owner to reasonable compensation for the producer’s use of the work. The legislation takes off the table the copyright owner’s eligibility for statutory fees that can go up to $150,000 and limits the availability of an injunction.

SXSW Illustrates Phenomenon in Licensing Music for Film, Television, and Multimedia Productions

The annual South by Southwest (SXSW) Festival in Austin,Texas is currently wrapping up. SXSW began twenty-two years ago as a small showcase for independent bands and has grown into a massive music, film and interactive technology extravaganza

One effect of the growth is the rise in film, television, and multimedia producers who attend SXSW in search of good music for their productions. In a recent Wall Street Journal article, reporter John Jurgensen profiles SXSW as a source for film and television background music.

The phenomenon is consistent with the advice I often give to my producer clients who want good music for their productions but have limited budgets for music acquisition. I recommend using original music by independent art­ists.

Clinton Campaign Learns the Perils of Stock Footage with the Red Phone Ad

Many of you probably saw news coverage of Hillary Clinton’s red phone ad over the past week.

Stock Footage Actress is Reluctant Participant in Clinton’s Red Phone Commercial

The ad focuses on Clinton’s claims that Barack Obama lacks the experience to serve as President. It shows a series of sleeping children and asks voters which candidate they would want to see answering a 3 a.m. emergency phone call to the White House. One of the sleeping children in the commercial is Casey Knowles.  The depiction of Knowles is from stock footage made eight years ago. Getty Images now owns the footage. 

It turns out Knowles is a staunch supporter of Barack Obama’s presidential candidacy.  Knowles has campaigned for the Obama campaign, has attended his rally, and served as a precinct captain for the Washington caucus. Knowles has laughingly suggested getting together with the Obama campaign to produce a counter ad.

The Downside of Stock Material Usage

There is nothing wrong with using properly licensed stock footage. Producers do it all the time. However, as I discuss in The Permission Seeker’s Guide Through the Legal Jungle and as the Clinton campaign has learned, using stock footage can carry some downsides:

Are Made-Up Languages Copyrightable?

nuqneH?

That’s a typical Klingon greeting. Roughly equivalent to “Hello”, nuqneH? is pronounced nook-neck and literally means “What do you want?” Klingon is a made-up language developed for the Star Trek television and motion picture franchise. And that brings me to the topic of today’s post.

Are made-up languages copyrightable?

Copyright Seminar in Arlington, Virginia on Saturday, January 12

On Saturday, January 12, 2008,  at 2:00 p.m., I'll offer a presentation on “Copyrights and Licensing for Creative People” at the Arlington County Central Library.  The presentation covers copyright and licensing issues relevant to your books, websites, music, artwork, and video productions.  A book signing of The Permission Seeker’s Guide Through the Legal Jungle follows the presentation.  There is no admission fee.  The library is located at 1015 North Quincy Street, Arlington, Virginia, 22201.  The library offers free parking and the Ballston station metro stop on the Orange Line is three blocks away. For additional information, call the Arlington County Central Library at (703) 228-6321.

Five Good Reasons to Clear Rights Properly and to Request Permission When Needed

I recently participated in a Women In Film & Video (WIFV)-sponsored panel discussion about legal issues for producers.  Having just written a book on the topic of rights clearance, I was tasked with explaining the rights clearance process to the attending film and television producers.

Here’s my shorthand explanation of rights clearance - When you clear rights, you verify that there’s no material in your production that is going to get you sued or prevent distribution of your production. Clearing rights properly involves considering copyright, trademark, privacy, publicity, defamation, and other laws. Getting the permission you need can also involve doing paperwork, incurring legal expenses, and transgressing down more than a few dead ends.

So why bother to go through rights clearance process? I decided to start my panel remarks by addressing that very question:

Copyright Public Domain – Explained in 60 Seconds

In the One Minute How-To, podcaster George Smyth challenges his guests to explain how to do something. The something can be anything the guest chooses. The catch is the guest has only 60 seconds in which to make the explanation.

I decided to take the challenge and explained “How to Determine if Creative Material Is Public Domain or Copyright Protected”.  You can listen to my 60-second explanation of this complicated topic

One-Minute How To Interview Dec 2007

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