Facts and Myths About Fair Use and Permissions

Forget what you’ve heard about using a certain number of words or paragraphs of someone else’s book, song, or poem in your own work without needing to get their permission. It’s probably wrong.

Fair use is more complicated and nuanced than that, according to Jeevan Sivasubramaniam, vice president of editorial at Berrett-Koehler Publishers.

Sivasubramaniam tapped into 30 years of publishing industry acquisitions and administration experience to explain the finer details of fair use and debunk common myths around it on a recent Berrett-Koehler webinar.

U.S. copyright law regarding fair use encourages the sharing of knowledge, Sivasubramaniam told the close to 145 people who attended the one-hour online session. “The goal is to disseminate and change and spread things as much as possible. But it’s nebulous because of that,” he said.

Even if something seems to fall under fair use, it might not stop a company from going after you. “If you have concerns, check with your publisher or a lawyer,” he said. “Don’t rely on AI for legal advice.”

Defining Fair Use

The US Copyright Office defines fair use as “a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” The law takes four factors into account when evaluating fair use:

The use’s purpose and character. According to the Copyright Office, the courts are more likely to find nonprofit educational and noncommercial uses fair, as well as uses that are transformative, meaning they draw from the original to create something new. The more transformative value you add to the original in your own work, the likelier that using part of the original should be okay, Sivasubramaniam said.

The nature of the copyrighted work. This factor analyzes the degree to which the work that was used relates to the copyright’s purpose of encouraging creative expression. “Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item),” according to the Copyright Office. Borrowing from a published work like a book also is looked on more favorably than borrowing from unpublished works such as a letter or speech, Sivasubramaniam said.

The size and importance of the portion being used in relation to the total copyrighted work. The quantity of the copyrighted material being used matters—but there’s no set word count or ratio. If you’re using a large portion of the original, it’s less likely to fall under fair use and require you to get permission from the copyright holder. “This is why song lyrics or poems are bad bets,” Sivasubramaniam said. “A paragraph from a 150-page book is different from a tenth of a poem.” The quality of what you want to use also matters. If the one paragraph you’re excerpting from a 500-page book on the meaning of life explains the author’s core concept, “that’s problematic,” he said. “If you took a paragraph from the intro, that usually is fine.”

The effect of the use on the market for or value of the original. According to the Copyright Office, courts look at the extent to which an unlicensed use of a copyrighted work harms the existing or future market for that work. Or as Sivasubramaniam put it, “Things come down to money.” If you reproduce so much of the protected substance of the original work, “you may have created a substitute for it, which isn’t good,” he said

What’s In the Public Domain?

In the US, all works except sound recordings lose copyright protection after 95 years. That means any work published prior to 1931 is in the public domain and you’re free to reuse parts of it without first seeking permission from a copyright holder.

According to the Copyright Office, other older works may be in the public domain, including:

• Works published in 1931 to 1963 without notice, or with notice not but  renewed within 28 years of first publication
• Works published from 1964 to 1977 without notice
• Works published from 1978 to 1989 without notice, or without registration within 5 years of first publication.

Sivasubramaniam shared examples of T.S. Eliot poetry as an example. “The Wasteland” was published in 1922, so it’s fair game for quoting because it’s in the public domain. But “The Four Quartets” was published in 1943, so it’s protected until 2039—you’re need to get permission from the copyright holder to quote from it extensively.

Works produced by the US federal government aren’t copyrighted and can be used with a citation without seeking additional permission. The same rules may not apply to works published by state and local governments. And government agencies sometimes post reports published by private entities that aren’t in the public domain—making it a good idea to check the source and permissions before using something, he said.

Works with a creative commons license generally are open for reuse, but some have restrictions, so take care to read the fine print, he said.

Debunking Fair Use and Permissions Myths

Other common misconceptions or myths about fair use S. spent time discussing and debunking:

You’re covered if you get permission from the creator. The person who wrote the book or song might own the copyright but have granted licensing rights to another party, such as a publisher. If you’re asking for permission to reuse something, that’s who to approach. “Even if you want to quote Bob Dylan song lyrics and you got permission from him directly, you’d have to get permission from the company that owns the rights,” Sivasubramaniam said.

Something is okay to use because it’s already online. Just because it’s available doesn’t mean you can use it without getting permission first. “It’s like stolen property, even if you didn’t know it was stolen, you can’t keep it,” he said.

It’s okay if you’re paraphrasing. Just because you changed some words doesn’t mean you’re automatically protected. You can discuss an original work in your own language with proper citation, but if you’re only changing a few words, or closely following the creator’s distinctive language, it could still be infringement. “The question isn’t whether you use their exact words, it’s whether you copied protected elements of how they expressed the material,” he said.

It’s okay to copy someone else’s visual if you cite the source. Visuals are often their own copyrighted works, so it might not be enough to add a citation. “This doesn’t mean every box or arrow is protected by copyright. A simple diagram might not be original enough to copyright. The creators way of visually expressing things may be,” Sivasubramaniam said.

Watch a replay of the webinar, “Permissions, Fair Use, Libel, and Other Messy Legalities for Nonfiction Writers,” and view other past webinars in the Berrett-Koehler “Cranky Editorial Guy” series here.

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Michelle Rafter is a Portland, Oregon, journalist, editor, and ghostwriter; she’s on the ASJA board and serves as the organization’s publications chair. Connect with her on LinkedIn here.