Copyright: Part 3 – Fair Use
June 30, 2008 by Lillie
Table of contents for Copyright
Recently, a college professor friend called to ask my advice. One of her students created a PowerPoint presentation for a class project. She wrote the text and used artwork she copied from a Web site to illustrate her presentation. My friend asked if I thought that use of the artwork fell within “fair use” since the student was using the art for a class project and not selling it or even making it publicly available. Absolutely not!
One of biggest misconceptions about copyright may be the idea that copyrighted works can be used if the user doesn’t recognize monetary gain from the use. Copyright gives the author complete control of how the work is used, whether or not the user realizes any value from the use. A blogger who copies a post from another blog and gives the author credit is still infringing copyright because the author no longer has complete control of the work. A student who copies artwork to use as illustrations in a class project is still infringing even if no one but the student and the professor see the project.
The Copyright Office offers a fact sheet on fair use. Criticism, news reporting, research, and teaching are among acceptable uses. However, whether a specific use of copyrighted material is fair use or infringement depends on several factors, including 1) the purpose of the use, 2) the nature of the copyrighted work, 3) the amount of material used in relation to the total work, and 4) the effect of the use on the potential market or value of the work.
There is no standard for fair use. Some institutions and organizations have internal policies, such as ten percent of a copyrighted work can be used for academic purposes. However, those criteria are arbitrary and may not hold up in court. Ten percent of one work may have little effect on the value of the total work, but ten percent of another may have a significant adverse effect on the market.
The best policy is to ask permission of the copyright holder if there is any doubt that the use is fair use. The author has the complete control over the work and can choose how much or how little to allow to be quoted. Authors can transfer copyright or grant exclusive or non-exclusive rights for any amount of time, for a fee or for free. The author might grant the exclusive right to one publication to publish the work first, then grant to other publications non-exclusive rights to publish the same piece after the first rights period ends.
Most bloggers believe it is fair use to post a brief excerpt with a link to the full article on the author’s blog or Web site fair use. However, the law does not state this. The law states that the four factors listed above be considered to determine whether the use is fair use under the copyright law.
Let’s compare two hpothetical cases of use by those criteria.
Hypothetical Case #1: A blogger posts a brief excerpt of the piece with a link to the complete post:
- The purpose of the use is likely educational rather than commercial, even though the quote might improve traffic and income.
- The copyrighted work (a blog post) is intended to be read online by the public, and a link from another blog would likely increase the number of people who read the article. If the author earns income from advertising or product sales, the opportunity for that income is still there.
- The excerpt is a small portion of the total work.
- The use isn’t likely to damage the potential market for the work. In fact, linking to the post could possibly make the work more profitable if the author earns income from advertising.
Hypothetical Case #2: A blogger publishes the complete post, giving the author credit and linking to the author’s blog:
- The line blurs between educational and commercial use. The material does educate readers, but the blogger posting another writer’s work is likely receiving commercial benefit from advertising.
- The copyrighted work (a blog post) is intended to be read online by the public, and publishing the material for another audience would likely increase the number of people who read the article. However, if the author earns income from advertising or product sales, the opportunity for that income is lost.
- The post is the entire work.
- The use will reduce the value of the work because the author loses the opportunity to earn income from readers.
This is my personal analysis of the two cases. Since the law is unclear, fair use or infringement can be determined only in court. Asking permission prevents any future problems.
Writers will often freely give permission to quote part of an article and link to the complete work, and they may give permission to publish the entire article on another site or in another publication. However, the right to grant or not grant permission belongs to the author and no one else.
What do you think constitutes fair use of a blog post or article? What about books and other long works? Share your thoughts in comments, and be sure to read other comments to carry on the conversation.
I have a question about using artwork on my blog. My blog has no advertising and I don’t make money in any way from it. I have postcards, art books, calendars, etc, with pictures I’d like to use as illustrations on my blog. Is it legal to scan in a portion of a drawing from a book, and use it on my blog if I site the artist, and the book it came from?
I also wonder about dragging images from Google images and using them on my blog for illustrations.
I write a family newsletter which I send only to my grandkids. I have used illustrations from kids story books (with attribution: “Picture from Mary Englelbreit’s Mother Goose.”) I’ve never thought of it as a big deal, but now I’m wondering, and want to know what’s right in copyright terms.
What about quotes on blogs? If I quote from a book I’m reading, or use a quote from a quotation book, how do I attribute it properly? If I’m talking to a friend I just say, “This book I’m reading says…..” and I’ve done the same on my blog, with a reference to the title and author. Is that enough?
Thanks! Answers to these questions might be helpful for other newbies, too.
Travelinomas last blog post..The Heroes Are Coming!
This is an excellent guide. It’s a shame more users don’t know about copyright law.
Johns last blog post..A Woman in Charge: The Life of Hillary Rodham Clinton
Travelinoma,
I don’t want to get into specifics because I’m not a lawyer and don’t want to mislead you. So I’ll give you a general response.
First, you need to determine whether the artwork is copyrighted and what rights are given. If the illustration is old, it may be in the public domain now. The trick, though, is figuring that out because under previous versions of the laws copyright could be renewed/extended. So just because the time has passed for the copyright to expire for the original author or artist that doesn’t mean it couldn’t now belong to that person’s heirs. There is a section of the Copyright Office to check that, but it is not easily searchable.
If the material is copyrighted, the copyright owner might give certain rights automatically. For example, stock photo sites usually grant certain rights for each photo, which may vary depending on what you purchase. Often, you have the right to display the artwork/photo on your blog but not sell it.
If you are getting the picture from a book or Google Images without any specific rights granted, you would have to ask the four questions listed in the post that the law says must be considered in determining fair use. If the use is not commercial or contrary to the nature of the original work, you use only a small portion of the total work, and the use doesn’t harm the value of the work, it’s probably fair use.
In general, I think the safest approach is to look for illustrations where the rights are clear or to get permission of the copyright holder first. I cringe to think that when I first got online, I used many images without any thought of whether they were copyrighted or not. I was among the people who had no clue that images online were copyrighted.
Now I’m cautious about where I get images for my blog. I get photos from Dreamstime.com because many of the pictures cost only $1 with the rights to use non-commercially. There are several other good places to find stock photos. Sometimes I use Microsoft clip art images, which are free. There are other clip art sites as well – Microsoft is just the easiest to use.
If you use a direct quote from a book, it’s appropriate to cite the source, at least the title and author. You could give the publisher and the page number, also, but that’s probably not necessary.
However, if you report what the book said without giving a direct quote, you don’t have to cite the source. Ideas aren’t copyrighted – just the way the ideas are expressed.
Example where source must be cited: “Copyright law is for the birds. I’ll use whatever I want on my blog.” (from the book Copyright Law by Famous Author)
Example where source doesn’t have to be cited: I’m reading a book by an author who doesn’t agree with the copyright law and says she’ll use whatever material she wants on her blog.
Hope this helps. Copyright and fair use are more complicated than many people realize.
John,
Thank you. I hope we can educate writers and Internet users a little about copyright, but there’s so much ignorance and misinformation, doing so is a big challenge.
This is an excellent post, and I hope everybody reads it. You wrote up a very clear, easy to understand guide. Thanks for doing that.
There are so many misconceptions about copyright running rampant on the web. If you don’t charge people for something, you can do anything you’d like with it. ( Napster, Kazaa, etc ) Or: 300 words are fair game. Or plenty of others. There’s a great deal of confusion about who can do what … and it doesn’t help anybody. I’m always glad to see someone shining a light on this subject!
Unfortunately, I get the feeling copyright protection is something that the RIAA gets to enjoy, but a lot of us “little people” can’t always count on.
Forrests last blog post..Talapus Lake in June Snow
Forrest,
I’m sure you face challenges with copyright frequently as people are bound to want to use your stunning photographs. With the rampant ignorance on the Internet, many people don’t realize those beautiful pictures are your intellectual property.
Yes, the “big guys” can afford to do all kinds of things to protect their copyrights, to the point of seriously inconveniencing people who buy their products and want to use them responsibly. It is much more difficult for us “little people” who don’t have the resources of the big organizations and companies.
There’s probably not much we can do against people determined to steal our intellectual property. However, I hope we can educate those who infringe copyright out of ignorance rather than malice.
Great article. wish more people knew about the copyright laws. Even I get a little confused with it. Especailly with music file sharing.
Dave,
The law is so complicated that we all get confused. Since there is no clear definition of exactly what constitutes fair use, it’s not easy to know in a given situation. But if we are all more aware of the law and consider each situation carefully, there will be less infringement.
Lillie,
Many question why it should bother a writer or blogger to have more widespread exposure for an article or blog post. One reason (aside from losing control over how one’s work is used) is that when a piece is posted elsewhere with the writer/blogger’s byline removed, Google (of course) indexes it using a link to a website other than the original. If the website where it’s been re-posted is a higher-profile site than the original and there is no link back to the original site, the usurper could end up at the top of search results, with your original article playing second fiddle.
This actually happened to me with a buyer who purchased usage rights to my article at Constant Content and immediately proceeded to treat it as if he’d purchased full rights–removing my byline and replacing it with his own. He then not only posted it to his blog but also sold it (I’m assuming, though not certain, he received payment) to Associated Content–even though I’d already sold that identical article to AC several months before he had. One of his postings of my piece actually ended up with top billing in Google search results, with my posting being bumped to the second position.
So, writer beware! This is what you’re up against when other people play fast and loose with your work. It’s important to take steps to protect your work, as I did when I informed this buyer of his violation of the rights he’d purchased and demanded that he 1) replace my byline on the article (as posted to his blog) and restore it to its original condition (since he’d made changes to it) and 2) remove the piece from AC. (I also notified both CC and AC of his violations.) He apologized and promptly removed it from both sites, though I hadn’t required its removal from his blog, since he had, after all, purchased usage rights.
My experience has been that most people who misappropriate our work (either intentionally or ignorantly) will remove it when we demand that they do so.
Thanks for another informative post on copyright!
Jeanne
Jeanne,
Thanks for reinforcing and elaborating on my advice. You have the advantage (…er, disadvantage) of speaking from personal experience, which makes what you say more powerful. My information is all second-hand as my work has never been stolen.
Lillie,
You’re very fortunate! Hopefully you’ll always be able to approach this topic from that vantage point!
Despite your “inexperience” (with having your content stolen, that is), your advice is excellent — well-researched, thoroughly thought-out, and clearly presented — and offers a great resource to those writers who want to learn more about copyright issues and find practical ways for protecting their work from infringement.
Thanks again for a wonderful series!
Jeanne
Thank you, Jeanne. Your post about your experience got me thinking about copyright in the first place. And I think you’ve had enough experience for you and me both.
Sadly, I think the way institutions like the RIAA sue everybody around the globe ( I don’t do P2P, but sympathize with 8 year olds being sued ) compared to the recourse you or I have access to … contributes to a lot of confusion, especially on the web. There’s always a sense of “it’s not a crime if they don’t catch you” in human nature, but people seem to think that, if it’s not backed by a corporation, it must be fair use.
Oh, and thanks about the photos!
PS – What you describe as lack of personal experience probably allows you to speak dispassionately on the subject.
I’ll say!
Glad to have been instrumental in sparking your inspiration to create this excellent series, which provides so much helpful information to your readers!
This is definitely another area that I’m sure people don’t think about due to online blogging. When I started reading this, I was worried about some of my posts and then realized my blog carnivals are legal because the people who wrote those blogs sent ME the link to be able to use them.
That’s one of the neat things about blogging, Jeanne. We can inspire each other and expand on each other’s topics.
Diane,
You’re right. Blog carnivals don’t present any copyright problems because the bloggers gives permission to post an excerpt and link to their articles. The same thing applies to group writing projects and contests. The key is that in each case, the writer is in control of whether their work is included or not. If they don’t want an excerpt (or article if applicable) posted, they simply don’t enter.
It sounds like you need to read through the fact sheet again. It sounds like the student using some art for the PowerPoint is in perfect standing to use it. It falls in line with all four points.
Tiara,
Your differing opinion just shows how confusing “fair use” is. The PowerPoint presentation used the entire piece of artwork – not a small portion of it as addressed in item 3. Perhaps what was happening wasn’t clear in my explanation. The student downloaded posters of original art and used each complete poster as one slide in the presentation. She did this numerous times with various posters. So each poster was used 100% – that is the equivalent of using an entire book. The artwork just happens to be in smaller pieces. If 10% is fair use – which isn’t spelled in the law, simply a hypothetical based on common practice – you could use 10 pages of a 100-page book but only 1/10 of the area of a painting. Hope that clarifies my position. Thanks for your input.
I am new to the blogging arena and the whole copyright situation so this post has been a bit of an eye opener.
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Niall,
I’m glad this was helpful. Hope you find blogging fun and productive.
Copyright infringement and plagiarism should be taught in schools, maybe English comp classes. The Web is such a free-for-all at times and I suspect a lot of people don’t realize that you can’t simply cut and paste anything you want. But then again, you also have the scrapers, spinners, and people that know it’s wrong but do it anyway or don’t care. It’s frustrating. Thanks for doing your part in educating the masses.
.-= Celeste Stewart´s last blog ..Posted an Article on Several Article Directories =-.
Celeste,
Education won’t stop the scrapers, but it may at least slow down the copying and pasting out of ignorance.
I responded to every comment when it was made, but nested comments (which included my replied) were lost when I moved my blog.
Forrest,
Yes, I agree about the RIAA. As an e-book author, I am opposed to encrypted e-books even though that may reduce piracy. I believe it also reduces sales because it makes opening and reading the book you bought so inconvenient – not to mention the feeling that the company just doesn’t trust you. This whole situation is a big mess – too much draconian measures on the part of many of the big guys and too much content theft against the little guys.