Answer: As an express statutory exception to the exclusive rights of copyright owners, the “fair use” of a copyrighted work, or portions thereof, for purposes such as criticism, comment, news reporting, teaching, scholarship or research, is not an infringement of copyright. However, there are no exact rules for how much use is considered fair.
Rather, fair use is determined on a case-by-case basis under an intentionally flexible four-factor analysis or test: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Courts have varied widely in their interpretation and application of the fair use test, which is technically a defense to copyright infringement to be raised in litigation. Nevertheless, certain general observations pertaining to use of quotations under a fair use analysis should be noted:
- The mere fact that a publisher is a for-profit entity engaging in commercial publishing activities is not dispositive. Courts have found fair use even in circumstances where the use was made purely for commercial advertising and promotional purposes.
- Publishers and authors have a First Amendment right to engage in criticism and comment, and the full exercise of free speech rights, by necessity, must include the ability to reprint appropriate portions of third-party text. The fair use exception is intended to safeguard these First Amendment free speech rights.
- While fair use applies to both published and unpublished works, use of published works is more likely to be considered fair than use of unpublished works.
- Similarly, while fair use applies to both fiction and non-fiction, use of non-fiction is more likely to be considered fair.
Publishers and authors of course do not have the luxury of spending years and tens of thousands of dollars litigating the issue of whether a particular use in a single publication is fair or not. Rather, publishers and authors need to seek “safe havens” regarding the scope and nature of usage wherein they can have a reasonable measure of certainty that certain uses would be considered fair.
Towards this end, a well-respected entertainment attorney and film clearance expert, Michael C. Donaldson, has articulated a three-part due diligence analysis that transcends the general four-factor test for fair use. It is designed to define a safe harbor for use of non-fiction works in motion pictures. The “Donaldson doctrine,” so to speak, results from Donaldson’s exhaustive synthesis and review of fair use jurisprudence. While limited to use of non-fiction works and intended primarily for films rather than book publications, the Donaldson doctrine is nevertheless helpful to publishers and authors.
Following and applying the Donaldson, publishers and authors should ask the following three questions with respect to quotations from non-fiction works:
- Does the quotation illustrate or support a point being made by the author?
- Is the amount of the quotation used limited to what is reasonably appropriate to illustrate or support the author’s point? and
- Will the reader (i.e. the intended audience for the publication) readily make the connection between the material quoted and the author’s specific point?
If the foregoing can all be answered affirmatively, then it is reasonably likely that a successful case for fair use has been established. Question 1 underscores the importance of having some legitimate purpose for use of the quotation, such as criticism, comment or teaching, that is grounded in First Amendment free speech rights. Question 2 emphasizes the general fair use precept that one should quote the smallest amount possible necessary to illustrate one’s point. Lengthier quotes, especially with any gratuitous verbiage (i.e. not germane to the author’s specific point), should be scrupulously avoided as such may give rise to claims that the author is using the quote as a substitute for creating his or her own original content. Question 3 ensures that the quotation is not being included merely for entertainment value alone.
Some publishers have issued their own specific “rules of thumb” for permissible quotation length. For those publishers adopting internal guidelines, the typical range for direct quotations is between 250-500 words, with an overall cap, if there are multiple quotations from a single book or other larger work, of 400-800 words. The STM Guidelines provide for up to 400 words for a single quote with an aggregate cap of 800 words. It is critical to note though, that there are many special circumstances that operate as exceptions to these word ranges.