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.
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This is an excellent guide. It’s a shame more users don’t know about copyright law.
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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.
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Great article. wish more people knew about the copyright laws. Even I get a little confused with it. Especailly with music file sharing.
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
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.
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.
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.
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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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.
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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.
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