Writing articles and books is a great marketing technique. But what is fair when it comes to quoting the copyrighted works of others?
There is a saying that the faculty members use at my university: “Stealing from one person is called plagiarism, and you will get fired. Stealing from many, and citing sources, is called research, and you will get tenure.”
The legal concept of “fair use” in the digital age is in the news. Now that the Supreme Court has rejected Google’s request to review an appeals court ruling in the Java copyright lawsuit, the legal battle with Oracle will shift back to federal court. The issue is how much one person or company can use the intellectual property of another without having to pay royalties.
In a June 30 USA Today article, John Shinal expertly puts the issue in perspective: “If Oracle (ORCL) wins this next phase of the long-running case, the result could have a material financial impact on both companies. And any large damages award against Google (GOOG) might be enough to push the tech industry back toward a proprietary model of developing operating systems and applications…Microsoft (MFST) was also among the notables supporting Oracle with an amicus brief.”
That is an example of fair use. At least I hope it is. Would it had been better to paraphrase and claim the analysis as my own? Here is the disclaimer I give my clients when it comes to writing and editing books. “I am not an attorney. This is not legal advice. Please seek competent legal advice before making any decisions. The following is for marketing educational purposes only.”
(While we are being all legal like, the attorneys at Forbes like me to disclose things like I own stock in Google. A teensy-weensy amount really.)
“As I tell my students and try to model in my own work, there are rules, and one should follow them; as its name suggests, the Fair Use Doctrine has clear guidelines, and one needs to be honest about whether the material is being used for teaching, personal use, distribution, etc., in order to know if a violation has occurred,” says Julie Drew, a professor of English at the University of Akron.
Some seasoned journalists talk about using a 250-word rule of thumb when quoting from a book. But is that kosher?
“The ‘250-word rule’ is a myth, like ‘four bars’ (sometimes ‘eight bars’) for copying music,” says Minneapolis attorney Bruce H. Little. “Journalists and other writers invoke ‘250 words!’ like they’re casting a spell, but it won’t always protect them. No automatic percentage (you hear ‘10%’) or number (250 words) makes it safe to use someone else’s work under every possible circumstance. How could length be the only value in the equation?”
Other experts concur.
“Copyright law does not include a 250-word fair use safe harbor,” says Joy Butler, attorney and author of The Permission Seeker’s Guide Through the Legal Jungle. “The origin of this copyright law myth is that publishers sometimes choose to give blanket permission allowing others to cite up to 250 words of a work. Authors should not assume that the publisher of the work to be quoted employs the 250-word practice.”
Butler says fair use is a qualitative and not a quantitative test. An author who wants to rely on fair use can heed this rule of thumb:
Use the quote for purposes of commentary, news reporting, or parody – though that need not be the primary purpose of your entire article or book. Quote as few words as possible to make your point. Note your fair use chances increase when quoting a factual work like a history rather than highly creative work like a science fiction novel.
The case law on this is less than clear, says Bill Price, an attorney from Illinois.
The Nation lost to Time when it took about 300 words from President Ford's memoirs, but they were the newsworthy ones, so the use cut the magazine’s and the book's potential sales. “This market injury test, with the proof of damages associated with same, may be the best key to court action -- no harm, no foul,” says Price.
When asked, Jesse Woo, a California media and entertainment lawyer, prefers this as a rule of thumb.
"Leave the quote as short as possible and use only what you need to make your point. If you must think in terms of a number, try to use a small percentage of the original work (less than 1%) rather than rely on some arbitrary word limit.”
Drew says let The Golden Rule be the star that guides you. What would Jesus, the Dalai Lama, or Gandhi do?
“Asking yourself what you would want and expect if you were the other guy is a fine place to start, or maybe end if the answer is not otherwise already clear to you. To paraphrase Gandhi, be the writer you want to see in the world. (See what I did there?).”
Yes I did. And thanks for the snappy ending.
