A Writer’s Guide to Permissions and Fair Use

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The Eye
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Whenever you decide to directly quote, excerpt, or reproduce someone else’s work in your own—whether that’s a book, blog, magazine article, or something else—you have to consider, for each use, whether or not it’s necessary to seek explicit, legal permission from the work’s creator or owner.

Unfortunately, quoting or excerpting someone else’s work falls into one of the grayest areas of copyright law. There is no legal rule stipulating what quantity is OK to use without seeking permission from the owner or creator of the material. Major legal battles have been fought over this question, but there is still no black-and-white rule.

For understandable reasons, you might be seeking a “rule” to apply to reduce your risk or reduce time spent worrying about it. Probably the biggest “rule” that you’ll find—if you’re searching online or asking around—is: “Ask explicit permission for everything beyond X.”

What constitutes “X” depends on whom you ask. Some people say 300 words. Some say one line. Some say 10% of the word count.

But any rules you find are based on a general institutional guideline or a person’s experience, as well as their overall comfort level with the risk involved in directly quoting and excerpting work. That’s why opinions and guidelines vary so much. Furthermore, each and every instance of quoting/excerpting the same work may have a different answer as to whether you need permission.

So there is no one rule you can apply, only principles. So I hope to provide some clarity on those principles in this post.

When do you NOT need to seek permission?

You do not need to seek permission for work that’s in the public domain. This isn’t always a simple matter to determine, but any work published before 1923 is in the public domain. Some works published after 1923 are also in the public domain. Read this guide from Stanford about how to determine if a work is in the public domain.

You also do not need to seek permission when you’re simply mentioning the title or author of a work. It’s like citing a fact. Any time you state unadorned facts—like a list of the 50 states in the United States—you are not infringing on anyone’s copyright.

It’s also fine to link to something online from your website, blog, or publication. Linking does not require permission.

Finally, if your use falls within “fair use,” you do not need permission. This is where we enter the trickiest area of all when it comes to permissions.

What constitutes “fair use” and thus doesn’t require permission?

There are four criteria for determining fair use, which sounds tidy, but it’s not. These criteria are vague and open to interpretation. Ultimately, when disagreement arises over what constitutes fair use, it’s up to the courts to make a decision.

The four criteria are:

  1. The purpose and character of the use. For example, a distinction is often made between commercial and not-for-profit/educational use. If the purpose of your work is commercial (to make money), that doesn’t mean you’re suddenly in violation of fair use. But it makes your case less sympathetic if you’re borrowing a lot of someone else’s work to prop up your own commercial venture.
  2. The nature of the copyrighted work. Facts cannot be copyrighted. More creative or imaginative works generally get the strongest protection.
  3. The amount and substantiality of the portion used in relation to the entire quoted work. The law does not offer any percentage or word count here that we can go by. That’s because if the portion quoted is considered the most valuable part of the work, you may be violating fair use. That said, most publishers’ guidelines for authors offer a rule of thumb; at the publisher I worked at, that guideline was 200-300 words from a book-length work.
  4. The effect of the use on the potential market for or value of the quoted work. If your use of the original work affects the likelihood that people will buy the original work, you can be in violation of fair use. That is: If you quote the material extensively, or in a way that the original source would no longer be required, then you’re possibly affecting the market for the quoted work. (Don’t confuse this criteria with the purpose of reviews or criticism. If a negative review would dissuade people from buying the source, this is not related to the fair use discussion in this post.)

To further explore what these four criteria mean in practice, be sure to read this excellent article by attorney Howard Zaharoff that originally appeared in Writer’s Digest magazine:  “A Writers’ Guide to Fair Use.”

In practice, if you’re only quoting a few lines from a full-length book, you are most likely within fair use guidelines, and do not need to seek permission. But understand this is a gray area, and every case is different.

When should you seek permission?

If you use someone’s copyrighted material in such a way that it might not be considered fair use, then you should ask for explicit permission. Remember that crediting the source does not remove the obligation to seek permission. It is expected that you always credit your source regardless of fair use; otherwise, you are plagiarizing.

To seek permission means contacting the copyright owner of the work (or their publisher or agent), and requesting permission to use the work. Most publishers have a formal process that requires a signed contract. Often, you are charged a fee for the use, anywhere from a few dollars to thousands of dollars. I’ve written a separate post explaining the process for seeking permissions, with a sample request form. 

But there is an unfortunate Catch-22 here. Once you start asking for permission—to reduce your risk—that gives the creator/owner of the work the opportunity to ask for money or refuse to give permission, even in cases where the use would actually be considered fair. So you can get taken advantage of if you’re overly cautious.

How to avoid the necessity of seeking permission

The best way to avoid seeking permission is to not quote or excerpt another person’s copyrighted work. Some believe that paraphrasing or summarizing the original—rather than quoting it—can get you off the hook, and in some cases, this may be acceptable. But be aware you can still be found in violation of fair use, and guilty of copyright infringement, when paraphrasing.

You can also try to restrict yourself to using work that is licensed and available under Creative Commons—which does not require you to seek permission if your use abides by certain guidelines. Learn more about Creative Commons.

What about using work from websites, blogs, or in other digital mediums?

The same rules apply to work published online as in more formal contexts, such as print books or magazines, but attitudes tend to be more lax on the Internet. When bloggers (or others) aggregate, repurpose, or otherwise excerpt copyrighted work, they typically view such use as “sharing” or “publicity” for the original author rather than as a copyright violation, especially if it’s for noncommercial or educational purposes. I’m not talking about wholesale piracy here, but about extensive excerpting or aggregating that would not be considered OK otherwise. In short, it’s a controversial issue.

What about using images, art, or other types of media?

The same rules apply to all types of work, whether written or visual.

Typically, you have to pay licensing or royalty fees for any photos or artwork you want to use in your own work. If you can’t find or contact the rights holder for an image, and it’s not in the public domain, then you cannot use it in your own work. You need explicit permission.

However, more and more images are being issued by rights holders under Creative Commons rather than traditional copyright. To search for such images, you can look under the “Creative Commons” category at Flickr or VisualHunt.

Note: If you find “rights-free images,” that doesn’t mean they are free to use. It simply means they are usually cheaper to pay for and overall less of a hassle.

No permission is needed to mention song titles, movie titles, names, etc.

You do not need permission to include song titles, movie titles, TV show titles—any kind of title—in your work. You can also include the names of places, things, events, and people in your work without asking permission. These are facts.

But: be very careful when quoting song lyrics and poetry

Because songs and poems are so short, it’s dangerous to use even 1 line without asking for permission, even if you think the use could be considered fair. However, it’s still fine to use song titles, poem titles, artist names, band names, movie titles, etc.

If you need personalized assistance

With more authors publishing independently than ever, this can be a tough issue to navigate without having an experienced editor or agent to guide you. If you need help, I recommend my colleague Kelly Figueroa-Ray, who has experience in permissions and proper use of citations.

For more help