Many
writers and filmmakers are confused about the fair
use doctrine and whether they need permission to
borrow from copyrighted works.
If
the fair use doctrine applies, no license is needed
to borrow from a copyrighted work. It
gives the public a limited right to draw upon
copyrighted works to produce separate works of
authorship. Such uses include fair comment and
criticism, parody, news reporting, teaching,
scholarship and research. Thus, a movie or literary
critic does not need permission to include a small
quote from a work being reviewed. It is sometimes
said of writers that if you borrow extensively from
one author’s work, you are a thief; but if you
borrow from hundreds, you are a scholar. Of course,
the scholar adds value by synthesizing information
from prior works and creating something new.
In
determining whether the use of a copyrighted work is
fair use, courts weigh four factors: 1) the purpose
and character of the work; 2) the nature of the
copyrighted work; 3) the amount and substantiality
of the portion borrowed in relation to copyrighted
work as a whole; and 4) the potential adverse effect
on the market for, and value of, the copyrighted
work.
1.
The purpose and character of the work: A non-profit
educational use is more likely to be considered a
fair use than a commercial use. A commercial use is
one that earns a profit.
2.
The nature of the copyrighted work: There is greater
public interest in allowing
borrowing for scientific, biographical and
historical works than for entertainment works.
3.
The amount and substantiality of the portion
borrowed in relation to copyrighted work as a whole:
Taking one sentence from a five hundred page book is
more likely to be considered a fair use than taking
a sentence from a
ten line poem.
4.
The potential adverse effect on the market for, and
value of, the copyrighted work: If borrowing from
the copyrighted work harms the market for it, the
use
is less likely to be considered a fair use.
Borrowing a sentence from a novel and
incorporating
it in another, completely different kind of work,
such as a scholarly work, is unlikely to have any
effect on sales of the novel. Likewise, borrowing
from a book that is out of print is
not likely to have an adverse impact on its sales.
In
applying these factors to a specific factual
situation, it can often be difficult to predict
whether a use will fall within the doctrine.
Generally speaking, a greater amount of material may
be borrowed from non-fiction works than from
fictional works. Clearly, a writer can borrow
histori-cal facts from a previous work without
infringing upon the first author’s copyright,
because of both the fair use doctrine and because
historical facts are not copyrightable. Moreover,
since factual works, unlike works of fiction, may be
capable of being expressed in relatively few ways,
only verbatim reproduction or close paraphrasing
will be an infringement.
Writers
should be more cautious in borrowing from novels and
other fictional works.
In one case, the author of the book
“Welcome to Twin Peaks: A Complete Guide to
Who’s Who and what’s What,” was found to have
infringed the television series “Twin Peaks.”
The book contained detailed plot summaries and
extensive direct quotations of at least eighty-nine
lines of dialogue.
One
encounters a lot of grey areas in applying the fair
use doctrine. It is safe to say that a schoolteacher
will be protected if she photocopies a Newsweek
article and distributes it to her class on one
occasion. If the schoolteacher, however, photocopies
an entire textbook and distributes it to her
students in order to save them the expense of
purchasing their own texts, this would not be a fair
use. But there are many factual situations that lie
between these two extremes; and in those cases it
can be difficult to predict whether the fair use
doctrine will be a good defense.
Regardless
of whether the fair use doctrine may apply, it is
always preferable to have a release than risk
litigation and incur substantial legal fees to have
a court determine whether or not you are within your
rights. Studios and insurance companies have become
very cautious because of their fear of litigation.
Even if they think a suit would be frivolous, they
may decline to acquire your script or film if you
are relying on the fair use doctrine to borrow
materials from other authors.
Mark
Litwak is a veteran entertainment attorney and
producer’s rep based in Beverly Hills, California.
He is the author of six books, including the
recently published Risky Business, Financing and
Distributing Independent Film (Silman-James, 2004).
He is the author of the CD-ROM program Movie Magic
Contracts, and the creator of the Entertainment Law
Resources web site: marklitwak.com. He can be
reached at law@marklitwak.com.
