Copyrights and Copywrongs

Copyright logoI recently had the opportunity to ask Jared Spiegel, a New York based attorney with the firm Bowles Lutzer & Newman LLP, some of the most common copyright questions faced by authors. Many thanks to Mr. Spiegel for offering his time and expertise.

Indies Unlimited and Mr. Spiegel want to make it clear this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This information should not be used as a substitute for competent legal advice from a licensed attorney in your state.

Q: Mr. Spiegel, there’s a widely held belief among self-published authors that song lyrics, aside from those in the public domain, are never to be used in a novel without written permission from the copyright holder. This is reportedly true no matter the length of the lyric(s) or percentage of the song quoted.

For example, a character in the novel can be described as singing the lyrics to Back in Black, but the lyrics themselves cannot be written into the story. Is any (or all) of this accurate?

A: This is a very common copyright question for self-publishers. Most people I speak to believe that there is some form of carve-out copyright infringement exception for using a very small portion of a copyrighted work. While there are exceptions to other laws for minor, “de minimis” violations, no such rule exists in copyright law.

There may be a fair use defense for using a small passage of copyrighted material in your work, but there is no absolute word limit, or in the case of music, time limit, that will automatically qualify for fair use. Song titles on the other hand, are fair game and can be used freely without permission from the copyright holder (this also applied to album titles, poem titles, artist names, and movie titles).

Q: Authors often like to begin a chapter with a short quote from a poem. Assuming the quoted portion is not in the public domain and appropriate credit is given, is this permitted?

A: Quotes like these fall into a bit of a murky area of copyright law. It is possible that the use of a short quote will be defensible under the fair use doctrine (discussed below), but there is no clear rule regarding the number of words or lines from a poem that can be used without the author’s permission. The issue with poems is that they are generally very short. Because they are so short, there is a real risk of infringement when using even an excerpt from a poem, as the percentage of the copyrighted material in relation to the work as a whole is taken into consideration when making a fair use assessment.

One major misconception among authors is that simply giving an author credit will allow you to freely use that author’s copyrighted material. This is simply untrue. Attribution is not permission. If you are interested in using a copyrighted quote, you should either obtain the author’s permission or consult with an attorney to examine the likelihood of defending your use under the fair use doctrine.

Q: “Fair use” is a term thrown around quite a bit when discussing copyright law. I know the provisions of “fair use” are complicated and primarily apply when the quotes are used for noncommercial, nonprofit, or educational purposes. But can “fair use” ever apply when small quotes are used in a novel, perhaps to add a sense of realism to the novel? For example, the character in a novel is reading Moby Dick and quotes a section aloud within the novel. Is this permissible?

A: There are some major misconceptions out there about the “fair use” rule of copyright law. To fill in those who are unfamiliar with this misunderstood copyright infringement defense, the fair use doctrine allows an author to make limited use of another person’s copyrighted work without asking permission. The rule is based on the premise that people should be entitled to use limited portions of copyrighted material for the purpose of commentary, criticism, parody, news reporting, research and/or nonprofit educational use. Fair use is most frequently seen in the context of non-profit infringement and is typically not available to an infringer who is competing directly with the underlying work or diminishing the work’s commercial value.

There is a four-factor test that is used to determine whether an instance of potential copyright infringement will qualify for the fair use defense. The factors are subject to interpretation and by no means constitute a bright line rule, but can be helpful in assessing the risk of infringing on another’s copyrighted material. In determining whether the use of a copyrighted work is fair, the factors to be considered are:

  • The purpose and character of the use, including potential commercial, educational or nonprofit gains;
  • The nature of the original copyrighted work;
  • The proportion or percentage of the copyrighted material in relation to the original work as a whole; and
  • The effect of the use upon the potential market for or value of the original copyrighted work.

As for short quotes from another copyrighted book (like the one in your example), there is unfortunately no clear answer, as each instance will have to be examined on a case-by-case basis. However, it is worth noting that a quote from Moby Dick is fair game, as it is in the public domain and its copyright protection has expired. If the quote you intend to use is from a source that is still protected by copyright, it will be important to analyze the use of that work by using the four-factor test outlined above. The fair use defense to copyright infringement is very thorny, so if you are unsure about whether or not your specific situation qualifies, the best advice is to consult with a knowledgeable copyright attorney.

Q: It sounds as if the safest way to avoid copyright infringement is simply to obtain permission before quoting. Mr. Spiegel, thanks again for joining us.

About the Attorney: Jared Spiegel is a New York based attorney with the firm Bowles Lutzer & Newman LLP. His practice emphasizes general business law including corporate matters, startup representation, intellectual property and commercial litigation. You can reach Jared at jspiegel@blnlaw.com.

Author: Melinda Clayton

Melinda Clayton is the author of the Cedar Hollow series, as well as a self-publishing guide. Clayton has published numerous articles and short stories in various print and online magazines. She has an Ed.D. in Special Education Administration and is a licensed psychotherapist in the states of Florida and Colorado. Lear more about Melinda at her Amazon author page

36 thoughts on “Copyrights and Copywrongs”

  1. Excellent interview, Melinda, and very enlightening. That’s an issue that seems to come up again and again in various ways, so it’s good to know that we really do need to get permission and not just “wing it.” So often it seems like such an innocent thing, but obviously it could become a major court battle. Thanks for your great investigative reporting!

    1. Thanks, Melissa. I think the biggest thing I learned from the interview is that there’s a lot of gray area in copyright law (too much for my comfort level!)

  2. Thank you for this great post Melinda. I think we all need to think about copyright as we write and want to protect our work and also when we make book trailers etc. For anyone who wants to learn more – Coursera via Duke University has a free class about copyright – currently in week two if you want to check it out (there will probably be future courses also)

    https://www.coursera.org/course/cfel

    According to the instructors there are 5 framework questions one should ask:
    1. Is the work protected by copyright?
    a. Is the work I want to use protected by copyright, or is it in the public domain?
    b. If I wrote it, do I still own copyright, or did I sign over rights for my intended use to the publisher?
    2. Is there a specific exception in copyright law that covers my use?
    a. Is my intended use covered by a specific exception to the exclusive rights in the copyright law, such as the one for libraries or for classroom performances and displays?
    3. Is there a license that covers my use?
    a. Is there a Creative Commons license attached to the work? If so, can I comply with the terms of the license, or can I find another useful work that is CC-licensed?
    b. If affiliated with an educational institution, is there a license that governs how the copyrighted material I’m accessing through my library can be used? If so, can I comply with the license terms? If you are uncertain, your librarian should be able to help you.
    4. Is my use covered by fair use?
    a. Four factors are:
    i. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    ii. the nature of the copyrighted work;
    iii. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    iv. the effect of the use upon the potential market for or value of the copyrighted work.
    b. Questions for transformative fair use under factor one are:
    i. Does the copyrighted material help me make my new point?
    ii. Will it help my readers or viewers get my point?
    iii. Have I used no more than is needed to make my point? (Is it
    “just right”?)
    5. Do I need permission from the copyright owner for my use?
    a. If so, first locate the copyright owner and fully explain your intended
    use in your permission request.
    b. If no response or answer is no, reconsider your use of this work to see
    if you can make a fair use, or consider using another work.

    1. Thanks for this, Elisabeth – great questions! I see what are probably copyright violations all the time in self-published works (and committed a few, too, until learning better!). Very nice to know Duke University offers free classes – thank you!

  3. Melinda, thanks to both you and Jared for this excellent and very useful information. Here’s hoping it keeps at least one indie author out of an ugly legal battle.

  4. I’ve been told that use of product and store names in a novel without permission can get you in trouble. For example, Kleenex, Pizza Hut, Walmart, etc. Is that true?

    1. I don’t know the answer to this, but would guess not. I once read a book where the author put the little trademark symbol after every name-brand product mentioned. It found it terribly distracting and totally unnecessary.

    2. I’ve heard mixed messages on that, Greta. Some insist you can’t, others insist as long as there’s no “brand confusion,” you can. I guess as with copyrights, it’s best to ask someone who knows (but can you imagine chick lit without product and store names?).

    3. You can use brand names and product names if they’re just part of the scenery. He stopped into McDonalds and got lunch. However, where you run into trouble is if you libel them (including showing them in a false light). So, having a McDonalds where the manager curses at a customer might get McDonalds to take notice, as they’ll argue their employees don’t act that way and you’re falsely showing them in a negative manner. On the flip side, big name authors tend not to use them, even if they’re saying nice things because it offers the company free publicity (Sorta like in movies, where Bing pays to get it’s search engine used by characters). So, it’s not that you can’t do it. There are just some practical reasons it’s not done.

  5. Melinda, I just finished a novel where an angel was described as an Oprah Winfrey look-a-like. She repeatedly referred to her this way. Is an author able to use a celebrity name when describing a character without getting permission?
    Thanks.

    1. I’m honestly not sure, Lois (maybe Jared will stop by), but I’ve seen it done multiple times. I can’t imagine *how* it could be a problem, but who knows?

    2. Lois, in America, yes. In France, maybe not. There was recently a high-profile case involving Scarlett Johansson, where she sued a French novelist over use of a character who was her doppleganger. She won. The character was a major character and, according to news stories (I haven’t actually read the book), the character would pretend to be ScarJo and even slept with ScarJo’s real-life exes. A lawyer friend said she won the case because of peculiarities in French law, and that she would not have had success in the US. I tend to believe him, as the judge ruled the book could be translated and that it did not unfairly trade on her image (even though he found it defamitory).
      Here’s an article about the suit: http://www.webpronews.com/scarlett-johansson-wins-lawsuit-against-author-using-her-as-sex-object-2014-07

      As to your question, I think it’s fine to say a character looks like a famous person once or twice. But, if it’s a major part of the plot of the book, I’d think about how necessary it was, talk to a lawyer and opt out of Amazon.fr.

  6. Excellent post, Melinda, it really pays to be right on top of copyright laws. I had no idea that writing a few lines from a song could land you in it… ooops. It never even occurred to me. At least I know better now. Thanks Melinda.

  7. Thanks for the post. Copyright is always a tricky issue. As authors, we know how hard it is to create and we want to acknowledge those who have inspired us and share their words with others, may they be inspired to. But, it takes more than just citing the owner of a work to make everything mesh with copyright law. Generally the desire to use the work of others comes from a good place, but we still have to make sure we follow the laws. It would be nice if there were a central rights clearinghouse. I think more people would request rights if it were easy to contact the rights holders. In most cases, it’s easier to forego the quote (which I did for my short story collection) than track down the rights holder.

    1. Thanks so much for weighing in with clarification for some of the questions, RJ! I actually have a post coming up at some point in the future wherein I describe my attempt to gain permission to use a quote. Yep, easier to forego the quote – at least in my case.

  8. Thank you Melinda. Very helpful page. Leads to a few questions which is good that there is a comments section. So helpful. None of us want to spend time dealing with the legal system when we could be writng. 🙂

  9. Melinda: Since I wrote for Harlequin, all of Harlequin’s novels with copyright flags went past the legal department–which helped to educate the authors. If I have a character visit Elizabeth Arden’s Red Door spas or the Cafe du Monde or Commander’s Palace in New Orleans…I’ve been there. An author can have a character be derogatory or having an argument on the site–but never with the staff of as you say, a McDonalds or a Starbucks. I have characters using Miss Dior or Chanel or Aramis. Levi Strauss does not like its products used in a spicy manner and said so. I stick with generic jeans. Frankly, I found the greatest copyright infringement in the education arena. Once I discovered a professor using the content of a powerpoint presentation I created in an assignment as a teaching tool for another class. I put a stop to it. The professor could grade me on it–but I told her and the Dean–design your own teaching tools or pay me for the use of mine. I ain’t giving away my intellectual property. I wrote it. I own it. Copyright law says so. I checked. Another item of copyright infringement is letters. Letters always belong to the author of the letter. We may have the letters in our possession, but the copyright belongs to the sender. Copyright law is a maze. Even if a famous/public figure of any stripe is dead–an author cannot defame that person beyond absolute facts–or the authors might find themselves in hot water or a legal entanglement with surviving relatives.
    Good post.

    1. Thanks for all this, Jackie – it’s very helpful! Unfortunately, my previous publisher wasn’t as careful with copyright issues. Your story regarding your PowerPoint presentation reminded me of a time back when I contracted to do trainings for various mental health/developmental disability agencies in Colorado. I got a packet of marketing materials one day with a letter inviting me to try them out. They were mine. I sent a very nice letter back thanking the person for mailing MY materials back to me. Never heard from her again. 🙂

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