The Five – Step Test
The doctrine of fair or permissible use is set forth as a provision within the law that allows a writer to quote from original works that are not his or her own for academic, literary criticism or technical review purposes.
The legal foundation for this doctrine is provided in Section 107 of the Copyright Act. Although the application of Section 107 to specific cases has been argued in the courts for many years, the following guide is presented as a series of “tests” to assist authors and others in avoiding potential instances of unintentional infringement.
1. The Golden Rule of Fair or Permissible Use
When in doubt, don’t use it unless you are certain. Always consult provisions 2 – 5, below.
2. Type of material used
If the material is technical, scientific, or a non-fictional work you are safer if you ask permission of the author. Short excerpts from fictional works such as novels, poetry, and plays that are used for critical review or purely educational purposes are generally permitted if a reference or citation to the original work is included with the copied materials.
3. Purpose of use
If the protected material is for educational, academic, or non-commercial uses and includes a reference to the original source you are probably clear of infringement issues. If the material is used for commercial “for profit” purposes it is best to obtain permission from the author.
4. Amount and substantiality
Use of shorter amounts of material is always safer than taking large sections, particularly if the material is from a fictional work, an unpublished work, or a “work in progress.” Avoid using material that is foundational relative to the original work.
5. Effect on the current and future economic value of the original work
If the amount of material used would be sufficient to convey the full meaning or central thesis of a fictional or non-fictional work, a court will probably rule infringement. This holds true if a negative literary criticism or review impacts a work’s future sales or reception in other markets.
A Few Examples
Assume that you are interested in the work of W. H. Auden and are writing a review of his poem “Funeral Blues.” If you quote the lines “He was my North, my South, my East and West, My working week and my Sunday rest…” and credit the author, you are within the bounds of fair use. If you were to quote the entire poem, even if you clearly credit both the author and the publisher, you have moved into infringement territory.
Now assume that you are so impressed with the latest “Star Wars” film that you want everyone to have the opportunity to have their personal copy of the film. You decide to make a copy of the movie and then post a link to your copy on a file-sharing website. Even though your intentions are indeed noble, you have committed infringement.
Let’s say you read an interesting article on the recent passage of a new health care bill. You decide you want to share the article’s contents on your blog with all of your readers. If you merely post a memorable quote from the article and link back to the original post, you are likely committing a fair use. If you select several portions of the article and repost them on your website, even with credit to the author, you have likely committed infringement.
LEGAL DISCLAIMER: The content presented in this article is for informational purpose only and does not constitute legal advice.
Reference – Although not a true checklist, the “Bible” of everything related to protected works is the 1,288 page Compendium of U.S. Copyright Office Practices, Third Edition. This is the 2014 version containing new sections devoted to electronic media.