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What is Fair Use?

By Mark Litwak, Attorney at Law

Many writers and filmmakers are confused about the fair use doctrine
and whether they need permission to borrow from copyrighted works.
If the fair use doctrine applies, no license is needed to borrow from a
copyrighted work. It gives the public a limited right to draw upon
copyrighted works to produce separate works of authorship. Such uses
include fair comment and criticism, parody, news reporting, teaching,
scholarship and research. Thus, a movie or literary critic does not need
permission to include a small quote from a work being reviewed. It is
sometimes said of writers that if you borrow extensively from one author’s
work, you are a thief; but if you borrow from hundreds, you are a scholar. Of
course, the scholar adds value by synthesizing information from prior works
and creating something new.
In determining whether the use of a copyrighted work is fair use,
courts weigh four factors: 1) the purpose and character of the work; 2) the
nature of the copyrighted work; 3) the amount and substantiality of the
portion borrowed in relation to copyrighted work as a whole; and 4) the
potential adverse effect on the market for, and value of, the copyrighted
work.
1) The purpose and character of the work: A non-profit educational use is
more likely to be considered a fair use than a commercial use. A commercial
use is one that earns a profit.
2) The nature of the copyrighted work: There is greater public interest in
allowing borrowing for scientific, biographical and historical works than for
entertainment works.
3) The amount and substantiality of the portion borrowed in relation to
copyrighted work as a whole: Taking one sentence from a five hundred page
book is more likely to be considered a fair use than taking a sentence from a
ten line poem.
4) The potential adverse effect on the market for, and value of, the
copyrighted work: If borrowing from the copyrighted work harms the market
for it, the use is less likely to be considered a fair use. Borrowing a sentence
from a novel and incorporating it in another, completely different kind of
work, such as a scholarly work, is unlikely to have any effect on sales of the
novel. Likewise, borrowing from a book that is out of print is not likely to
have an adverse impact on its sales.
In applying these factors to a specific factual situation, it can often be
difficult to predict whether a use will fall within the doctrine. Generally
speaking, a greater amount of material may be borrowed from non-fiction
works than from fictional works. Clearly, a writer can borrow historical facts
from a previous work without infringing upon the first author’s copyright,
because of both the fair use doctrine and because historical facts are not
copyrightable. Moreover, since factual works, unlike works of fiction, may
be capable of being expressed in relatively few ways, only verbatim
reproduction or close paraphrasing will be an infringement.
Writers should be more cautious in borrowing from novels and other
fictional works. In one case, the author of the book “Welcome to Twin
Peaks: A Complete Guide to Who’s Who and what’s What,” was found to
have infringed the television series “Twin Peaks.” The book contained
detailed plot summaries and extensive direct quotations of at least eighty-
nine lines of dialogue.
One encounters a lot of grey areas in applying the fair use doctrine. It
is safe to say that a schoolteacher will be protected if she photocopies a
Newsweek article and distributes it to her class on one occasion. If the
schoolteacher, however, photocopies an entire textbook and distributes it to
her students in order to save them the expense of purchasing their own texts,
this would not be a fair use. But there are many factual situations that lie
between these two extremes; and in those cases it can be difficult to predict
whether the fair use doctrine will be a good defense.
Regardless of whether the fair use doctrine may apply, it is always
preferable to have a release than risk litigation and incur substantial legal
fees to have a court determine whether or not you are within your rights.
Studios and insurance companies have become very cautious because of
their fear of litigation. Even if they think a suit would be frivolous, they may
decline to acquire your script or film if you are relying on the fair use
doctrine to borrow materials from other authors.

1Mark Litwak is a veteran entertainment attorney and producer’s rep based


in Beverly Hills, California. He is 1the author of six books, including the
recently published Risky Business, Financing and Distributing Independent
Film (Silman-James, 2004). He is the author of the CD-ROM program
Movie Magic Contracts, and the creator of the Entertainment Law
Resources web site: www marklitwak.com. He can be reached at
law2@marklitwak.com.