Brianna L. Schofield and Robert Kirk Walker. Fair Use for Nonfiction Authors: Common Scenarios with Guidance from Community Practice (Berkeley: Authors Alliance, 2017).
Fair Use for Nonfiction Authors is the third in a series of short, helpful guides from the Authors Alliance (the first two were Understanding Open Access and Understanding Rights Reversion). The guide was created “to help nonfiction authors understand reasonable strategies for the application of fair use in common situations.” With the help of several scholarly societies, the authors distributed a survey which garnered the responses of 60 authors with nearly 150 fair use stories. In addition to the survey responses, the guide was also shaped by existing codes of best practice in various domains. Keep in mind that the concept of fair use is evolving, and that there are no clear tests of what is or is not fair use. Also, the guide applies only to fair use in the United States (and neither the book nor this blog post constitute legal advice).
Four factors must be considered to determine whether using a copyrighted work is a fair use: the nature of the use, the nature of the work used, how much of the work is used, and the economic effect of the use. Case law shows that judges tend to focus on two questions: whether the use was transformative, that is, was the use for a different purpose or did it give the material a different meaning; and was the material used appropriate in kind and amount?
The guide then goes on to cover three common situations encountered by nonfiction authors. The first is criticizing, discussing, or commenting on copyrighted material. This use is well established, but does have the following limitations: the amount used should be appropriate for the purpose; the use should be connected to the purpose; and reasonable attribution should be given to the author. While U.S. copyright law does not require attribution, courts may find it a factor in favor of fair use, and of course it is standard practice in scholarship.
The second common situation is using a copyrighted work to illustrate, support, or prove an argument or point (unlike the situation above, here the copyrighted work is not the object of commentary). This use is also well established, and shares the limitations above regarding attribution, the amount used, and a connection between the work and the point being made. An additional limitation in this situation is that a use should not be made if it is merely decorative or entertaining.
The third common situation is using copyrighted works for non-consumptive research, such as text and data mining. For this more recent situation, fair use is strongly supported by existing case law. One caveat, however, is that databases being used in this manner must not have any contractual restrictions on text and data mining. And the material should not be employed in other ways, such as reading normally, or providing access to works digitized by the researcher. Real-life examples of fair use appear for all three situations described above, as well as hypothetical cases to test your knowledge.
The FAQ section of the guide covers creative and commercial uses, options when permission is refused, fair use for unpublished works, and contractual limitations on fair use. Two questions of particular interest to researchers concern the re-use of figures, and the policies of journals and publishers that require permission for re-use of copyrighted work. In the case of figures, including charts, graphs, and tables, it is important to remember that facts are not copyrightable. Creatively expressed figures may be copyrightable; one must analyze each particular case according to the scenarios above. It is worth mentioning here that some forward-thinking researchers are eliminating the permissions ambiguity regarding their own figures by making them available separately under a Creative Commons license. Where publishers ignore fair use and require permissions to re-use copyrighted work, the guide recommends engaging with them to explain the rationale and referring them to a code of best practices where applicable. Where fair use is integral to a work, it will be worth finding a publisher willing to rely on it.
The section “Beyond Fair Use” provides the following suggestions if your intended use does not qualify as fair use:
- Modify your intended use
- Ask the owner for permission (which may include paying a license fee)
- Use an openly licensed work
- Use a work in the public domain
Fair Use for Nonfiction Authors is an open access book (licensed CC BY) available online in PDF. If you would prefer a print copy, you can order one ($20) from the Authors Alliance, or check out the copy in Newman Library. For more information, see the Authors Alliance fair use page, which in addition to the guide includes a FAQ, links to fair use resources, and fair use news.
Through June 15, the Authors Alliance has a crowdfunding campaign for an upcoming guide, Understanding Book Publication Contracts. If you would like help support that guide, please consider a contribution.