More Stupid Questions on Fair Use

I always find fair use in the United States trickier than fair dealing in the U.K. and Australia (where I first studied IP law), so I’m often surprised at the confusions about what is and what isn’t fair use in the U.S. because it doesn’t necessarily comport with what I expect.  And I know that the beauty of the U.S. approach is supposed to be its flexibility and ability to adapt to changing circumstances unlike the more “brightline” and less flexible fair dealing approach taken in some other countries.

Having said that, I was just reading a psych book where the author used 4 lines of a Simon & Garfunkel song to illustrate a point he was making.  Throughout the book, the author made use of other works to illustrate his points, but I think this is the only music lyric he used.  The other works cited were mainly psychology texts.  All works cited (including the song) were given appropriate attribution in the text.  In addition, there is a specific note at the front of the book stating that the copyrighted song was used by permission.

I assume that quoting four lines of a song with appropriate attribution in this kind of context should qualify as fair use even in the U.S.  Thus, the copyright permission purely was taken for the avoidance of doubt?  And I assume whoever advised the author about this assumed that copyright holders of musical works may be more likely to complain about unauthorized use of their works than copyright holders of previous psychology texts?

It seemed unusual to me as a matter of law that the citing of music lyrics in terms of copyright permissions was treated differently to the citing of other literary works.  Is this a conventional practice in American publishing?  If I write a law review article citing song lyrics, should I obtain copyright permission to do so?

7 thoughts on “More Stupid Questions on Fair Use

  1. Assuming you’re really asking (I can’t quite tell if you’re being serious):

    1. Yes, it would probably qualify as fair use. Apply four-factor test. In this case, it’s used for illustrative/educational purposes, it’s a known song, it’s minimal use but sorta’ commercial. All in all, again, probably fair use.

    2. Right, with fair use, permission is not required.

    3. Yes, it’s convention – publishers don’t want to get sued. Easier in this case to ask for permission than beg for forgiveness.

    4. No, you don’t need permission to write your law review article, as long as each lyric you quote meets the requirements of the four factor test. Additionally, some argue that totality of copying also will factor against you (ie: if you quote portions of 200 songs, there’s a point where it’s no longer fair use).

    OK… so all that said, what do you think about the parody exception? Why should that get a pass? And what about Weird Al? He gets permission from everyone first, too, even though he doesn’t actually have to.

  2. The important thing to remember, I think, is that the RIAA is a hostile legal entity. In the U.S., it has changed the corporate understanding of fair use. To a certain degree it doesn’t matter if the citing of music lyrics without specific permission is legal or not; the corporate goal is to avoid being sued at all, regardless of the merit of a theoretical lawsuit.

    In this scenario, uses of copyrighted musical works that would seem to obviously qualify as fair use to a reasonable person are subject to the most conservative of publishing scrutiny. It is remarkably easy to sympathize with that position: the RIAA has proven to be anything but reasonable.

    They have actually created an ability to sell what is already free, offering the consolation that buying their permission is not nearly as expensive, financially and emotionally, as defending your rights in a court of law.

    Don’t get me wrong: the flexibility of fair use in the U.S. has a lot of upside. This is just an example of the long-term downside.

  3. If the song lyric was used for illustration then it is likely the fair use defence would be shaky at best. There’s also the point that a record label / music publisher / music artist would have the funds to be able to successfully sue for the use of the song lyric, no matter how short. After all, song lyrics are like poems, and what constitutes fair use around the length of poetic quotation is a fairly grey area. Especially as this is a commercial publication. It is likely therefore that this is half avoidance of doubt and half because the author is unsure whether the fair use defence would be strong enough to stand in court if he were called on it.

  4. It is common practice among publishers to require permissions for many kinds of quotations that in fact are completely legal when unlicensed, under fair use. This is especially irritating because licensing when unnecessary undermines common-sense understandings of fair use. Film scholars were hamstrung by this problem when publishers told them to get permissions for film stills and photos used as illustrations in their books. Through their Society for Cinema and Media Studies, and with the help of legal scholar Peter Jaszi, they created a Statement of Best Practices in Fair Use for scholarly publishing, available at http://www.cmstudies.org/documents/SCMSBestPracticesforFairUseinPublishing.pdf. This document has been persuasive to publishers. Among others, Oxford and Blackwells employ both fair use and fair dealing to incorporate unlicensed photographs of films into their publications. Similar statements or codes of best practices in other scholarly areas would shore up understanding among print authors. Until then, both authors and publishers will have to make individual decisions, and they may face obstacles from editors, counsel and executives, even though they may well be within the law. You can see how other practice communities, including documentary filmmakers, media literacy teachers, dance archivists, designers of open course ware in higher education, and online video makers have created codes of best practice at centerforsocialmedia.org/fairuse.

  5. It’s not a new problem, and it’s not limited to music. My first law review article (1998) used as an example the New York Times having cleared rights to a couple of lines of poetry (literally, a couple of lines of poetry) used in an op-ed piece.

  6. The trouble with relying on fair use is that it is not an exemption to infringement (regardless of the unfortunate, confusing language used in the actual statute.) There are statutory exemptions in the US Copyright statutes that are clearly defined as not infringing uses of works if the statutes are followed to the letter, (e.g. libraries’ and archives’ particular uses.) Relying on these avoids any potential litigational grounds for the copyright owner.

    Not so for a fair use “defense”. Because the statute is, in essence, a statutory restatement of the common law, prior existing fair use defenses- no more, no less, no one outside of a courtroom finder of fact can assess for certain whether the defense, in any particular case, will hold. It is an admission that infringement HAS taken place, and the defense of fair use is looked upon as a last ditch excuse to avoid responsibility.

    It is always better to ask for permission from the rights holder than to rely upon fair use. The rights holder will always have the right to sue to determine whether an infringement is actionable or not. Fair use is only a defense, sometimes clear enough to be found on summary judgment, most times not. Regardless, legal costs will be incurred on both sides with no likelihood of recovery from either side. Everyone is within their rights so only the lawyers gain, regardless of the outcome.

    If you get a license to use a work protected by copyright then you need no defense to infringement as long as you use the work within the terms of the license. Licenses for legitimate uses can be gotten for pittances, whereas relying on fair use could easily cost you $50,000 or more even if you eventually win.

    Those countries that use the Fair Dealing approach avoid this dilemma by specifying exemptions alone. This makes the decision making clear, but, as stated in the above article, leave flexibility to accommodate new ideas of use in the lurch. Neither approach is ideal. Even in a Fair Dealing state, a clear license to use in a manner not in the statute would clear the way for the equivalent “fair use” approach here in the US.

    When in doubt, wherever you are, first try to license. It makes things so much easier in the end. (Of course, this is not to be taken as legal advice. Consult an appropriate legal counsel versed in all the specifics necessary for proper handling of your own situation.)

  7. [This originally was submitted June 5, but was caught in a filter, so we are re-submitting.]

    “I assume that quoting four lines of a song with appropriate attribution in this kind of context should qualify as fair use even in the U.S.” In theory, yes. In (publishing) practice, not necessarily.

    The general convention amongst virtually all trade and academic publishers in the U.S. is to require the author to get permission for most (if not all) quotes used in the book as a prerequisite to using the quotes at all. As with everything, there are exceptions. If the author also is known as a well-regarded copyright scholar (i.e. William Patry, who I believe has no permissions for quoting others’ material for his book, Moral Panics), then the publisher will allow the author to use the quote or passage with a simple footnote.

    In contrast, non-lawyers almost always must receive explicit permission from the owner of the work. Indeed, the writer almost always must turn over the written permissions to the publisher as a condition of fulfilling clauses in publishing contract. Scholarly authors for works such as journals seem not to be subject to the same strictures as book authors, but again, industry practices vary.

    We are unsure how U.S. law reviews handle the issue overall, but we suspect the editorial boards for those publications will not require permissions for such a short passage — partly because they are manned, in the main, by law students who have no idea about the full extent of Section 107, and partly because they presume submitting writers also are lawyers with some idea about Section 107.

    On the other hand, it is a pretty regular practice among editorial boards of U.S.-based, peer-reviewed, non-legal social science journals to require permissions for virtually everything. Here, the editorial boards are equally ignorant of Section 107, but their ignorance goes in the other direction from the law students’, to adopting a “complete permission” policy.

    (Another issue in this area is that social science journals are more likely to be owned by publishing company conglomerates than are U.S. law journals, which mostly are affiliated with law schools. As a result, the parent companies for the journals are much more fearful of infringement lawsuits, and thus see permissions as insurance.)

    Music and song lyrics seem particularly susceptible to the publishing industry practice of receiving complete permission and clearance, mostly because the music industry now is seen as ceaselessly litigious. (With the peer-to-peer consumer litigation and the ridiculous 6th Circuit precedents that have consider even de minimis copying via digital music sampling an infringement, it is no wonder why the music industry has such a reputation.)

    Of course, this industry practice renders the fair use doctrine virtually null and void in U.S. book publishing, an area where arguably it should be as vibrant as anywhere else.

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