Fair use question
June 16, 2022 1:06 PM Subscribe
I'm a writer and have a question about something I'm working on with repurposed text. I've read about standards for fair use, but of course that can be murky. Is there a copyright lawyer that would do a free consult about this? Is someone here a lawyer or similar expert? More info inside.
I purchased the memoir of a scientist before knowing what a dirtbag he is, and I wanted to do something with the book. I've been working on a version that leaves only the pathetic, sexist content.
I'm transforming the work to add value (another angle) which is a requirement for fair use, but I'm still concerned about the project.
If you answer, please include if you're a lawyer, publisher, etc. to give some context to your answer.
I also welcome info on how I can do a free lawyer consult about this.
Thanks!
I purchased the memoir of a scientist before knowing what a dirtbag he is, and I wanted to do something with the book. I've been working on a version that leaves only the pathetic, sexist content.
I'm transforming the work to add value (another angle) which is a requirement for fair use, but I'm still concerned about the project.
If you answer, please include if you're a lawyer, publisher, etc. to give some context to your answer.
I also welcome info on how I can do a free lawyer consult about this.
Thanks!
There are rarely really clear answers to questions of Fair Use, though someone practicing in your country (presumably the US) can give you an informed opinion that a lawyer ethically could not based on a question on the internet.
There are many artist legal clinics, particularly in cities with law schools. Some of them will offer advice over the internet, some in person at certain times or by appointment. They may only provide limited advice, though, rather than things specifically tailored to your particular situation, depending on who is operating them and how they're authorized to act. They are usually pretty easy to google as 'artist legal clinic' + wherever you are -- state or nearest large city.
The Authors Guild has a legal advice service, as well -- membership isn't free, but if $135 a year is within your reach, it offers other benefits to writers, as well.
posted by jacquilynne at 1:24 PM on June 16, 2022 [3 favorites]
There are many artist legal clinics, particularly in cities with law schools. Some of them will offer advice over the internet, some in person at certain times or by appointment. They may only provide limited advice, though, rather than things specifically tailored to your particular situation, depending on who is operating them and how they're authorized to act. They are usually pretty easy to google as 'artist legal clinic' + wherever you are -- state or nearest large city.
The Authors Guild has a legal advice service, as well -- membership isn't free, but if $135 a year is within your reach, it offers other benefits to writers, as well.
posted by jacquilynne at 1:24 PM on June 16, 2022 [3 favorites]
Are you talking about altering the physical book, or about republishing (online or in print) portions of the text of the book?
posted by mskyle at 1:28 PM on June 16, 2022
posted by mskyle at 1:28 PM on June 16, 2022
There are rarely really clear answers to questions of Fair Use, though someone practicing in your country (presumably the US) can give you an informed opinion that a lawyer ethically could not based on a question on the internet.
If you're on Twitter consider reaching out to Kyle Courtney. He is a fair use expert and generally nice guy and could give maybe you some general advice.
The big deal is that as much as we want Fair Use to be an affirmative defense that you can use to keep from getting sued, really mostly what it is is a regular old defense that can keep you from LOSING when you get sued. Unless there is case law that is really really similar to an existing lawsuit, this is always going to be murky.
I assume you've read up on the four pillars of fair use and based on what you've said the big questions are: what are you going to make out of the transformative work? A website? Another printed book? And how old is the material? Was it ever published in the first place? Are you going to include your own commentary or just let the information stand out on its own? How much of the material are you using? What is the commercial value of the work and will any of it be lost because of the work you are doing?
I'm not a lawyer just a librarian and Fair Use maximalist but it's easy to be that if you don't have much to lose. Do you have much to lose?
posted by jessamyn at 1:29 PM on June 16, 2022 [7 favorites]
If you're on Twitter consider reaching out to Kyle Courtney. He is a fair use expert and generally nice guy and could give maybe you some general advice.
The big deal is that as much as we want Fair Use to be an affirmative defense that you can use to keep from getting sued, really mostly what it is is a regular old defense that can keep you from LOSING when you get sued. Unless there is case law that is really really similar to an existing lawsuit, this is always going to be murky.
I assume you've read up on the four pillars of fair use and based on what you've said the big questions are: what are you going to make out of the transformative work? A website? Another printed book? And how old is the material? Was it ever published in the first place? Are you going to include your own commentary or just let the information stand out on its own? How much of the material are you using? What is the commercial value of the work and will any of it be lost because of the work you are doing?
I'm not a lawyer just a librarian and Fair Use maximalist but it's easy to be that if you don't have much to lose. Do you have much to lose?
posted by jessamyn at 1:29 PM on June 16, 2022 [7 favorites]
I am not a lawyer but I do work in copyright. From what I can gather you want to take a book and remove all text besides the problematic parts and then publish only that? I wouldn't think that could be considered fair use (assuming the book is still in the copyright term). There could be an argument if you produced a book that took those words and added criticism and analysis to the leftover parts but I can't imagine just publishing those parts on their own would fit. But again I'm not a lawyer and my copyright field isn't in books. It would be like remixing a song and cutting out certain lyrics but keeping the remainder the same. It's transformative but I would think the new work wouldn't be enough to where the original writer couldn't claim an infringement but as mentioned above fair use isn't cut and dry. I'd recommend having an actual consultation with a copyright lawyer in the field of book publishing before attempting this. Hootie got in hot water for using just a couple lines from a Dylan song and having a whole different song around it.
posted by downtohisturtles at 2:06 PM on June 16, 2022 [4 favorites]
posted by downtohisturtles at 2:06 PM on June 16, 2022 [4 favorites]
All good advice above, but please also consider the potential that your project, even if it is Fair Use, may leave you open to charges of defamation (libel) or a violation of the author's moral rights, which include "preserving of the integrity of the work [which] allows the author to object to alteration, distortion, or mutilation of the work that is 'prejudicial to the author's honor or reputation'." This varies a lot by jurisdiction, so consulting a lawyer who is familiar with your state/country's laws as well as the laws of the scientist's country would probably be well worth your while.
posted by radiogreentea at 2:12 PM on June 16, 2022 [7 favorites]
posted by radiogreentea at 2:12 PM on June 16, 2022 [7 favorites]
I'm a librarian who took a copyright class and got an A and yet felt like I understood less at the end of the class than before I took it. Copyright is confusing, in part because there aren't clear rules.
When was the original work written or published? If the scientist's work was published in 1926 or earlier, then it is in the public domain and you can do a lot more with it.
Did you purchase a book or did you purchase the rights? Was it published? Is it available for sale?
You could write an article quoting it, but republishing large chunks of the original text doesn't seem necessarily transformative.
posted by bluedaisy at 2:55 PM on June 16, 2022 [1 favorite]
When was the original work written or published? If the scientist's work was published in 1926 or earlier, then it is in the public domain and you can do a lot more with it.
Did you purchase a book or did you purchase the rights? Was it published? Is it available for sale?
You could write an article quoting it, but republishing large chunks of the original text doesn't seem necessarily transformative.
posted by bluedaisy at 2:55 PM on June 16, 2022 [1 favorite]
Is your idea to publish this with yourself as the author, or the scientist? Are they still alive? Is the memoir a published work or is it like his personal journal or something? They both have copyright, but if it's the first commercial publication you might be able to call it abridged or something, or not even that and just call your transformational work "editing." A last option might be to change the names.
posted by rhizome at 2:57 PM on June 16, 2022
posted by rhizome at 2:57 PM on June 16, 2022
There is a 0% chance a "worst-parts only" version of another work is going to qualify for fair use.
Like if the memoir is 300 pages and you trim it down to the 30 pages, or even 10 or 15 pages, of worst parts and then publish that as, say, a shorter book that is available at book stores or online as an ebook - that is still very clearly the other author's work and no court is going to even entertain the idea that this is fair use.
Here is how that analysis breaks down (with all due allowance that courts are not 100% consistent in how they interpret these factors):
-> Purpose & character: Commercial and not transformative in any substantial way. Goes 100% against you.
-> Nature of the copyrighted work: It is a memoir, which is considered on the creative, not technical, end of things. 100% against you.
-> Amount and substantiality of the portion use: You have used many, many pages of the original work, and (presumably) long un-altered exact quotations. 100% against you.
-> Effect of the use upon the potential market: The fact that your work puts the author in a bad light is not what is considered here. Rather, can people purchase your version of the work and in doing so, get enough of the heart of the original work that they can simply skip purchasing the original. This is the only factor that goes in your favor at all.
More important, with that element of copyright risk, no publisher is going to take this on unless they receive some kind of license or permission from the original copyright holder.
Flip side, if you put up a blog post starting out, "It turns out that X is a horrible, pathetic, sexist person. Here is some evidence from X's memoir:" and followed by 3 or 4 paragraphs of the evidence from the memoir.
No one is going to care about this, even though your transformative use is quite minor. Analysis:
-> Purpose & character: Non-commercial and you have spent at least a small amount of effort transforming the work and adding some of your own input and context. This tends in your favor
-> Nature of the copyrighted work: It is a memoir, which is considered on the creative, not technical, end of things. Still 100% against you, but in this case it means that the amount and type of excerpts use will be considered more strictly.
-> Amount and substantiality of the portion use: 3-4 paragraphs of a 300 page work is a minor amount, and particularly if it is not "the heart" of the work itself but merely evidence that the author is a pathetic sexist jerk. This tends strongly in your favor.
-> Effect of the use upon the potential market: This will have no effect at all - tends strongly in your favor.
More important, it would be extremely unusual for the copyright owner to bother suing over the publication of a short blog post - particularly with the fair use factors arrayed against the success of any lawsuit.
A third and commonly seen situation is where you write your own 300 page book, or 30 page paper, which analyzes in great detail what a pathetic, sexist jerk X is. In this case all the main arguments and thrust of the work are your own, by far the vast majority of the words written are your own, and the amount of text used from the memoir is the bare minimum needed to demonstrate and illustrate the points you are making in your work.
This is the type of thing that is usually meant by "transformative work" - not merely excerpting the sections you consider of interest (that is considered rote work, non-creative, like compiling a telephone book), but bringing your own thoughts and analysis to bear on the subject with short excerpts from the memoir only serving as examples.
-> Purpose & character: This is very clearly a transformative work and this factor is strongly in your favor. If you publish this noncommercially (say, online) then that factor tends strongly in your favor as well. If you publish it commercially then the balance starts to tip the other way. That is why commercial works often require clearance of all copyrighted excerpts, even rather short ones, and if that's not possible will be wanting both the absolute minimum of direct quotations (summarize wherever possible, and simply refer to a page number in the original work - some published works concerning the work of artists who are particularly litigious simply make a practice of NEVER quoting even a phrase or sentence of the artist's original work) and where direct quote are absolutely essential, to make them the absolute breifest possible to make the point. Lengthy multi-paragraph quotations, no way. How about a couple of quoted words or a brief phrase instead? And even that, only when those exact words are actually necessary to make the argument.
-> Nature of the copyrighted work: It is a memoir, which is considered on the creative, not technical, end of things. This is still 100% against you - and one reason keeping the length of exact quotations, or eliminating quotations altogether if possible, is important.
-> Amount and substantiality of the portion use: The fewer and shorter your direct quotations of the original work are, the better and more in your favor. If you have many lengthy direct quotations, this still tends against you, particularly if your work is commercial in nature.
-> Effect of the use upon the potential market: Another reason your publisher is going to be directing you to the shortest possible direct quotes, and/or summarizing instead of direct quotes. The more you directly quote from the original (especially if your published work is commercial and available for sale) the more it can be portrayed as reducing the market for the original - the less direct quotes you include, the weaker this argument is.
This is the sort of thing you'll have no problem with if it is say a blog post or a non-commercial type project. If it is an actual published book though then it can be made to work but any publisher is going to be pushing hard for the things I've indicated above - either copyright clearance OR keeping any quotations few and brief.
posted by flug at 3:40 PM on June 16, 2022 [10 favorites]
Like if the memoir is 300 pages and you trim it down to the 30 pages, or even 10 or 15 pages, of worst parts and then publish that as, say, a shorter book that is available at book stores or online as an ebook - that is still very clearly the other author's work and no court is going to even entertain the idea that this is fair use.
Here is how that analysis breaks down (with all due allowance that courts are not 100% consistent in how they interpret these factors):
-> Purpose & character: Commercial and not transformative in any substantial way. Goes 100% against you.
-> Nature of the copyrighted work: It is a memoir, which is considered on the creative, not technical, end of things. 100% against you.
-> Amount and substantiality of the portion use: You have used many, many pages of the original work, and (presumably) long un-altered exact quotations. 100% against you.
-> Effect of the use upon the potential market: The fact that your work puts the author in a bad light is not what is considered here. Rather, can people purchase your version of the work and in doing so, get enough of the heart of the original work that they can simply skip purchasing the original. This is the only factor that goes in your favor at all.
More important, with that element of copyright risk, no publisher is going to take this on unless they receive some kind of license or permission from the original copyright holder.
Flip side, if you put up a blog post starting out, "It turns out that X is a horrible, pathetic, sexist person. Here is some evidence from X's memoir:" and followed by 3 or 4 paragraphs of the evidence from the memoir.
No one is going to care about this, even though your transformative use is quite minor. Analysis:
-> Purpose & character: Non-commercial and you have spent at least a small amount of effort transforming the work and adding some of your own input and context. This tends in your favor
-> Nature of the copyrighted work: It is a memoir, which is considered on the creative, not technical, end of things. Still 100% against you, but in this case it means that the amount and type of excerpts use will be considered more strictly.
-> Amount and substantiality of the portion use: 3-4 paragraphs of a 300 page work is a minor amount, and particularly if it is not "the heart" of the work itself but merely evidence that the author is a pathetic sexist jerk. This tends strongly in your favor.
-> Effect of the use upon the potential market: This will have no effect at all - tends strongly in your favor.
More important, it would be extremely unusual for the copyright owner to bother suing over the publication of a short blog post - particularly with the fair use factors arrayed against the success of any lawsuit.
A third and commonly seen situation is where you write your own 300 page book, or 30 page paper, which analyzes in great detail what a pathetic, sexist jerk X is. In this case all the main arguments and thrust of the work are your own, by far the vast majority of the words written are your own, and the amount of text used from the memoir is the bare minimum needed to demonstrate and illustrate the points you are making in your work.
This is the type of thing that is usually meant by "transformative work" - not merely excerpting the sections you consider of interest (that is considered rote work, non-creative, like compiling a telephone book), but bringing your own thoughts and analysis to bear on the subject with short excerpts from the memoir only serving as examples.
-> Purpose & character: This is very clearly a transformative work and this factor is strongly in your favor. If you publish this noncommercially (say, online) then that factor tends strongly in your favor as well. If you publish it commercially then the balance starts to tip the other way. That is why commercial works often require clearance of all copyrighted excerpts, even rather short ones, and if that's not possible will be wanting both the absolute minimum of direct quotations (summarize wherever possible, and simply refer to a page number in the original work - some published works concerning the work of artists who are particularly litigious simply make a practice of NEVER quoting even a phrase or sentence of the artist's original work) and where direct quote are absolutely essential, to make them the absolute breifest possible to make the point. Lengthy multi-paragraph quotations, no way. How about a couple of quoted words or a brief phrase instead? And even that, only when those exact words are actually necessary to make the argument.
-> Nature of the copyrighted work: It is a memoir, which is considered on the creative, not technical, end of things. This is still 100% against you - and one reason keeping the length of exact quotations, or eliminating quotations altogether if possible, is important.
-> Amount and substantiality of the portion use: The fewer and shorter your direct quotations of the original work are, the better and more in your favor. If you have many lengthy direct quotations, this still tends against you, particularly if your work is commercial in nature.
-> Effect of the use upon the potential market: Another reason your publisher is going to be directing you to the shortest possible direct quotes, and/or summarizing instead of direct quotes. The more you directly quote from the original (especially if your published work is commercial and available for sale) the more it can be portrayed as reducing the market for the original - the less direct quotes you include, the weaker this argument is.
This is the sort of thing you'll have no problem with if it is say a blog post or a non-commercial type project. If it is an actual published book though then it can be made to work but any publisher is going to be pushing hard for the things I've indicated above - either copyright clearance OR keeping any quotations few and brief.
posted by flug at 3:40 PM on June 16, 2022 [10 favorites]
An interested amateur here. You've gotten good advice, as far as I can tell. First, the middle ground is dangerous. Little blog posters and big publishers are safe, because they have the cloaks of irrelevancy and expensive lawyers, respectively. No lawyer, even one willing to do a detailed analysis of your situation pro bono, is going to be able to assure you of safety unless the situation is truly cut and dried, capital 'F' fair use. Because copyright holders can and do take legal action ranging from nastygrams to lawsuits with very high statutory damages even when it's arguably fair use.
Second, "Transformative" does not mean adding value, that's a derivative work. Transformative means really changing the nature of the thing in a way that's beyond just "an excerpt". Like, if you cut the physical words out and made a papier mache sculpture of them. Or wrote an essay analysing the quotes as evidence from within a particular framework, it would no longer be memoir but scholarship. This goes back to the whole idea of copyright, the right to make copies goes to the person who holds the copyright. Fair use has to go well beyond the making of copies, it has to be basically a new thing. References to ideas are 100% fair game, but the specific words are presumed to be infringement unless shown otherwise.
posted by wnissen at 4:11 PM on June 16, 2022 [1 favorite]
Second, "Transformative" does not mean adding value, that's a derivative work. Transformative means really changing the nature of the thing in a way that's beyond just "an excerpt". Like, if you cut the physical words out and made a papier mache sculpture of them. Or wrote an essay analysing the quotes as evidence from within a particular framework, it would no longer be memoir but scholarship. This goes back to the whole idea of copyright, the right to make copies goes to the person who holds the copyright. Fair use has to go well beyond the making of copies, it has to be basically a new thing. References to ideas are 100% fair game, but the specific words are presumed to be infringement unless shown otherwise.
posted by wnissen at 4:11 PM on June 16, 2022 [1 favorite]
You’re proposing publishing and selling someone else’s memoir under your own name because you’ve condensed it?
No, absolutely you can’t do this. I mean you can, but no legitimate publisher will publish this, and if you publish this yourself, the rightsholder (author and/or publisher) will have a nice infringement claim.
This is assuming the memoir is protected by copyright, and that you intend to publish this. It’s not super clear from your question.
Publication can mean posting online btw. A blog post doesn’t protect you by virtue of being a blog post and not a book—if you post Stephen King’s latest book on your blog his publisher’s coming after you.
Longtime book publishing rights professional here.
posted by kapers at 8:21 PM on June 16, 2022 [2 favorites]
No, absolutely you can’t do this. I mean you can, but no legitimate publisher will publish this, and if you publish this yourself, the rightsholder (author and/or publisher) will have a nice infringement claim.
This is assuming the memoir is protected by copyright, and that you intend to publish this. It’s not super clear from your question.
Publication can mean posting online btw. A blog post doesn’t protect you by virtue of being a blog post and not a book—if you post Stephen King’s latest book on your blog his publisher’s coming after you.
Longtime book publishing rights professional here.
posted by kapers at 8:21 PM on June 16, 2022 [2 favorites]
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