When writing your book, you sometimes quote or otherwise use other works, like books, songs, poems, or even pictures or artwork. Doing that is fine; after all, civilization is built on the ideas that come before us.
But if you want to stay out of court, you need to make sure you do it properly.
At Scribe, we get questions from authors all the time about these issues. This post will walk you through the basics of copyright, permissions, and fair use for books.
Important Note: Though I went to law school, I’m not an attorney licensed to practice law in your jurisdiction, nor should this be interpreted as legal advice. This blog post is a general aid and not a substitute for actual legal advice that is specific to your situation.
Part 1: Copyright
The Basics of Copyright
Copyright law is so integral to American law it’s enshrined in the Constitution. It was intended to “promote the progress of science” by giving creators “exclusive” rights protecting their original “works of authorship.”
This basically means that creative work protected by copyright (which is almost all creative work like books, blog posts, videos, photography, designs, etc.) cannot be used without the consent of the owner of the work.
There are some qualifications on this. Copyright law only protects the expression of ideas, but not the ideas themselves. This means anyone is free to use any ideas—they just can’t use the author’s original expression of those ideas (without consent, of course).
For example, I can talk all I want about how money can’t buy love. I just can’t sing The Beatles song about this (“Can’t Buy Me Love”) to do it, because I don’t own that specific expression of the idea.
Also, copyright is heavily limited by the “fair use” doctrine, which basically states that using the copyrighted work of another in order to comment on it or parody it is legal (I explain this in depth below).
There are only two real absolutes in copyright law:
- If the creative work is not under copyright, then you can use it all you want. That means anything in the public domain (published before 1923) or Creative Commons licensed. This is a great guide to determining if something is in the public domain, and this is a guide to Creative Commons.
- If you get permission to use copyrighted work, you’re fine to use it.
If neither of these things apply—for example, the work is still under copyright and permission is hard or impossible to get—that’s when things get complicated.
Using Copyrighted Work
For everything that is under copyright (which is most creative work), but you don’t have permission to use…well, you’re going to be frustrated at what I’m about to tell you:
There is no precise legal rule explaining exactly what you can and cannot use without permission from the copyright owner.
It’s kind of ridiculous (but so are most legal issues). If you want to use something that’s under copyright and haven’t gotten permission, the first step is to understand if the “fair use” doctrine applies.
Part 2: Fair Use
The Basics of Fair Use
Fair use is an exception to copyright law that allows you to use work without permission. A “fair use” is any use of copyrighted material done for a limited and “transformative” purpose—for example, commentary, criticism, or parody.
This is covered in section 107 of the Copyright Act, which says “the fair use of a copyrighted work, including such use by reproduction in copies…for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.”
This basically means you can use any copyrighted work, without permission, if you are quoting it to use it for one of these “transformative” purposes. There are 4 factors to consider when determining if fair use applies.
1. The purpose and character of the use: A distinction is made between commercial and not-for-profit/educational use. If your work is created to make money, that doesn’t automatically mean you are in violation of fair use, but it makes it harder to argue fair use if you’re using someone else’s work to profit from it.
2. The nature of the copyrighted work: Facts are not subject to copyright. But works of fiction are different, and get more protection. Again, this doesn’t mean quoting fiction violates copyright. For example, quoting it for review is generally found to be fair use, assuming the amount quoted is not too long.
3. The amount and substantiality of the portion used in relation to the work as a whole: This is the big one. Basically, most fair use analysis hinges on the amount that you use, the quality of what you use, and how key it is to the original work.
Frustratingly, there is no definite percentage to go by. For the purposes of quoting written work, a general guideline that is usually upheld in courts is that under 300 words is good. But there are plenty of cases where more is quoted, and that is considered fair use. Courts have upheld as low as 1% of the work quoted as not fair use, and 100% as fair use. The conventional percentage to stay below to be safe is in the 10-20% range.
4. The effect on the market: If your use of the original work reduces the likelihood that people will buy it, that’s a pretty strong factor in favor of you violating fair use. This means that if you quote so much that the original source isn’t necessary anymore, then you are affecting the market for it.
Don’t think “effect on market” has anything to do with the way you comment on it. A negative review is fine, that has nothing to do with fair use. Same with a parody. Making fun of a work, even if you quote a lot of it, is totally fine, and not a violation of fair use (by itself).
Fair Use Principles
When figuring out how much you can borrow from a copyrighted work, here are some principles to consider:
- Ideas, themes and facts cannot be copyrighted—only the specific expression of them.
- Fair use is most applicable when covering commentary, criticism, and parody.
- Fair use is much more broadly applied to non-commercial work than commercial work. If you are not profiting on the work, you get much more latitude.
- Use as little as possible to make your point.
- Under 10% is best; above 20% is high risk.
- There is no magical percentage or number that is always, under all circumstances, okay.
- Avoid using the “heart” of the original, i.e., what most people would buy the work to read/experience.
- Keep the borrowed portion as a small part of your work.
- Borrowing a short stanza from a long poem or long song for noncompetitive purposes, or 300 non-essential words from a book-length work, should be an OK application of fair use (but again, length matters, as one line of a song could be 10% or more of the quantity).
Part 3: Getting Permission
If you determine you want to use a copyrighted work and the fair use exception does not apply, then you need to get permission from the copyright holder.
In our experience, this is actually very rare when you are quoting text. In most cases, quoting text, especially other books, is covered by fair use.
But there are definitely times when permission is needed; for example, when you want to include photography or artwork in the book.
Getting copyright permission can be a serious minefield, and we recommend authors avoid this area if at all possible. Unless you absolutely need to have the work in your book, find a substitute.
For the best write-up on how to get permission, we recommend reading the Stanford University Library write-up on copyright permission, or the Digital Media Law Group write up.
Common Author Questions about Copyright
If I give credit, does that mean I didn’t violate copyright?
No. Giving credit to the original creator is necessary, but it does not mean you are free to use it without getting permission, nor does giving credit mean you are covered by fair use.
If I can’t find a copyright, am I free to use it?
No. Copyright automatically applies to almost all works created, especially those created after March 1, 1989, when it became optional to make the (C) mark obvious (before that date, it was true that copyright notice was mandatory). Just because you can’t find the copyright mark easily does not automatically mean you can use it without permission.
What if it’s not copyrighted? Do I still have to give credit?
Yes. If you use texts, excerpts, quotes, etc., that are public domain or creative commons, the source must be stated. Even if you are changing the wording, if the idea and the thinking come from elsewhere, it’s a good idea to give credit.
What can happen if I don’t give credit?
You may be accused of plagiarism. If you put your name under someone else’s texts without permission of the (original) author, this reflects very poorly on you, at a minimum. In other rare cases, you can actually be sued for not properly citing sources, even if copyright is not violated.
Does quoting with attribution mean I don’t violate copyright?
No. Quoting someone, by itself, doesn’t absolve you of the necessity to either get permission or to fall under fair use.
Do I need permission to mention song or movie titles?
No. Permission is not needed to talk about any type of titles, movie titles, TV show titles, book titles, art work, anything at all. You can also use the names of places, things, events, and people in your work without asking permission. These are all facts, which are not covered under copyright.
Can I quote song lyrics? Or poetry?
Maybe. This is very dangerous territory for two reasons: 1) Songs and poems are short, and 2) Music companies love to sue people for copyright violation. Titles are fair game, of course, but authors like quoting song lyrics to start chapters, and that can be a big problem. If you are commenting on the music lyrics, you are usually fine. If you are quoting them just to make your book better, you are walking a fine line. As long as it’s short and a small percentage of the song, you are probably OK. If it’s long, or a long percentage of the song, you may be in violation.
How can I know for sure I am safe from copyright violation?
Hire a copyright lawyer and pay them for a legal opinion. I’m not an attorney, I just play one on the internet, so you shouldn’t listen to me about anything, really.