Fair use primer

      E.R. mentioned "fair use" in his blog, and I think it might be worthwhile to look at fair use and how it relates to copyright. This is all general information, and if you have a fair use question, contact your attorney for advice, but this should give you a start in what it's all about.
      Many people use the good faith fair use defense if they're accused of copyright infringement. Basically it says that if the person who copied material reasonably believed that what he or she did was a fair use, then they shouldn't be held liable.
      Sounds simple, eh? If I think it's fair use, then it is. Not so fast. The courts use a test for determining fair use. They generally look at these four factors:
      1. What is the character of the use?
      2. What is the nature of the work to be used?
      3. How much of the work will you use?
      4. What effect would this use have on the market for the original or for permissions if the use were widespread?
      Let's look at each one briefly. First, what is the character of the use? The courts have usually found that if your use is nonprofit, educational or personal, such as criticism, review, commentary, news reporting etc., then the use is fair. (There's a catch in this, and it's the answer to number 4. We'll get to that in a moment.) But if you're making money off your use, then your use is probably not fair use.
      Second, what is the nature of the work to be used? If you use material that is fact and is already published, say in a newspaper, then the courts are more prone to find the use as fair. But if the material you used is imaginative (novel, play and so on) and/or unpublished, then the courts look harder at the use.
      Third, how much of the work will you use? You use just a bit of a work, then it's probably going to be ruled fair use, depending on number 4, of course. You quote the whole article, as did my commenter, then you've probably infringed. Quoting just a few lines from a song can be a substantial part of the work, but a few lines from a book are not.
      Fourth, and this is the big one that leads to so many court cases, if your use of this material was widespread, what effect would it have on the market for the original? Why is this one so big? Here's an example: You work for a newspaper and receive an advance copy of a book about a former president. The book is a fairly common biography of the former president except it says the president was actually a cross-dressing woman. You review the book and reveal this fact. Now, according to factor one, it's fair use because you are reviewing the book. Not so fast, bucky. That bombshell may be the major selling point of the book, and you've revealed it before the book was released to the general public. If the book sells well, then you're okay, but if the book sells poorly, the book's publisher is going to come looking for you with a whole posse of lawyers. Good luck.
      In other words, if your use damages the owner's ability to make money off the work, then it's probably not a fair use. This is the one that keeps attornies making so much money because it's hard to determine what that damage is or even if there is any. In our example of the presidential biography, let's say the book is badly written and very dry, not a commercial property at all. The book sells poorly. Is it because of your review or because of the writing?
      Fair use is complicated, and this only covers the very beginning. The best thing you can do before using other person's material is to look at those four questions and answer them honestly. If you have any doubts at all about your use, then get thee to a lawyer! It might keep you from having to appear in court.