What fair use protects – and doesn't
If you're going to use copyrighted work within your own, be prepared for legal headaches.
Cynthia Lamb, President of Rhino Entertainment, Bright, Ind.
I own a consulting firm and plan to self-publish a book detailing lessons I've learned. In my book, I quote song lyrics. The U.S. Copyright Office says I must get permission from the songs' copyright holders before using the lyrics, and I've started to do so. But my research suggests the fair use doctrine would let me reprint a percentage of the lyrics without this hassle. Can you help me understand the law in this area?
By Adriana Gardella, Fortune Small Business senior editor
When it comes to fair use, which is a defense to a copyright infringement claim, there are no bright-line rules or percentage calculations that will shield you from potential liability.
"The law is deliberately vague," says Emmett McAuliffe, an entertainment lawyer with Spencer Fane Britt & Browne in St. Louis. McAuliffe explains that this fuzziness isn't designed to confuse laypeople, but rather to strike a delicate balance that will not unfairly favor one side. It is for the courts to decide on a case-by-case basis whether the fair use doctrine protects an alleged infringer.
"In some situations, a small percentage of lifting can get you in trouble, and in others a large percentage can be okay," says McAuliffe, who notes that the size of a quote is just one of four factors that courts weigh when ruling on fair use. The others are the purpose and character of your use, the nature of the copyrighted work and the effect of the use on the potential market. Only a lawyer who is fully familiar with the facts of your case should attempt to assess these issues.
If you are tempted to enter this gray area without professional guidance, McAuliffe suggests you ask yourself this question: "Can I afford to go through an expensive trial to defend my fair use rights?" If you're at all litigation-averse (and really, who isn't?), McAuliffe advises either hiring a law firm to do a prepublication review or dropping the lyrics altogether. Why not find a way to make your point using your own words?
If you must use the lyrics, it's important to have a qualified attorney analyze the ownership status of each song, secure permissions, and ensure that all clearances are in the proper form.
This column provides general information only and is not intended to replace the services or legal advice of an attorney. Always consult a lawyer regarding any specific legal concerns, as laws vary from state to state.
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