Writers like words. That should go without saying. But writers are often prone to remember the words of others, and wish to use the words themselves. When is that allowed?
First off, you could contact the original author to get permission to quote him or her. As mentioned elsewhere, this can be quite frustrating and time consuming. So let’s assume that you can’t contact him or her for whatever reason. When can you safely use a quote?
That’s where the “fair use guidelines come in.”
PUBLIC DOMAIN
First off, you can quote anyone completely if the work is considered to be in the public domain. That means it meets any one of these criteria:
– The work was created 120 years ago.
– The work was published 95 years ago.
– The author died 70 years ago.
Example: Quoting the King James Bible is allowed since it was published in 1611, which is clearly over 120 years ago. However, quotes from the NIV version of the Bible (first published in the 1970’s and updated in the 1980’s and again in 2011) would not qualify as public domain.
Copyrighted, but still Fair to Use
If the work doesn’t meet the public domain test, then it becomes a matter of opinion. The judge’s opinion who hears the case is the only opinion that really matters though. The judge will weigh the following questions:
What is the purpose and character of the use? In other words, why are you using it. Using a quote for an educational paper is more likely to be fair, and using it on something you are selling is less likely.
What is the nature of the copyrighted work? What are you quoting? A historical account will be more likely to be fair to use, while a song or a poem (more artistic word usage) will be less likely.
What is the amount and substantiality of the portion used? In other words, how big is the quote compared to the size of the work. Quoting 2 sentences in a 1,000 word book is probably fair. Quoting 6 paragraphs out of a 12 paragraph work may not be considered fair.
What will the impact be on the potential market for or value of the original work? Will your work take away sales from the original author? Will your work criticize the author and reduce his or her ‘value’ less? If you will take away sales from the original author, it is less likely to be fair. After all, most authors are looking to make some profit from their work! Although this may be the biggest factor, it is not the only factor. All 4 of these questions will be weighted by the judge in making a decision.
With all of that said and done, the law also notes that the judge who hears the case can also consider “other factors” in making the decision. Aughhh… Frustrating. The bottom line is, even though everyone has an opinion, no one can answer this question until it goes to court, which nobody really wants.
So basically, it is best to either have permission of the author or quote from the public domain. If you can’t do that, then try to limit your quotes to ones that will be from less ‘artistic’ sources, keep them brief, and avoid detracting from the author’s market. If you do that there is no guarantee that the judge will agree, but you are more likely to prevail.
That brings us to the final note. The original author who copyrighted their work would have to bring a lawsuit against the person who quotes them. It has been the experience of our company that controversial authors are more likely to be very aggressive at controlling what is said about them (and hence more likely to sue). Also, the estates of authors who were famous and recently died are also more likely to aggressively pursue their copyright status in court. But even if they claim copyright infringement on legal stationary, it doesn’t mean that you have violated the law. It just means that they are willing to go to a court and let a judge decide. If you are so interested in using a quote that you would be willing to argue for its fair use, then by all means include it. If you are not willing to go to court over it, then prudence would dictate you leave it out.