Ask the Director: How much can I quote without permission?

Dear Director:

How much of an original work can one quote without permission? I think there is a percentage factor involved, but not sure what it is. I’d like to quote most or all of the lyrics to a song in an article to introduce an article about the difference a donation can make for the people who are helped by our ministry, but I wonder if I need to limit myself to a few lines or get permission.

Quote-Unquote

Dear Quote-Unquote:

The question you’re asking deals with copyright law, which protects the rights of content creator. Since it’s a legal question, I need to start with this disclaimer:

Mr. Trouten is not an attorney. The information in this answer is for education and entertainment purposes only, and should not take the place of expert advice from qualified legal counsel. Both  Mr. Trouten and EPA specifically disclaim any and all liability for damages which may arise from relying on Mr. Trouten’s advice.

Now that this is out of the way, here’s my answer.

When you’re using somebody else’s material, you’re relying on a portion of copyright law called “fair use.” This allows people to use other people’s work without permission in certain limited circumstances. Examples of permissible uses include reporting, opinion writing, a review, and academic use.

Sometimes you’ll hear people say that there’s a certain word limit, or that you’re allowed to use a certain percentage of a work. This is simply not true. It’s not nearly that straightforward. Instead, there are four factors to consider in determining whether something is “fair use.”

1. The purpose and character of the use. Journalism has a lot of protection here, much more than other commercial uses. Commentary and criticism related to the work being quoted enjoys high protection. Merely using a portion of copyrighted work to introduce an unrelated article would not have as much protection. And using a copyrighted work as part of a fundraising appeal is particularly problematic. It could imply endorsement by the songwriter, and is likely to be seen as a commercially motivated use rather than fair comment and criticism.

2. The nature of the copyrighted work. Facts and ideas aren’t covered, so basic information is public domain – but the particular way a person goes about expressing those facts and ideas is protected. Nonfiction has less protection than fiction and other forms of creative writing.

3. The amount you are using, relative to the whole. Using even one chorus from a song can wind up being too much, because lyrics are so short. But you could probably pull a few paragraphs from a book with proper attribution, because it’s such a small part of the whole thing. (This is why there’s no word limit. If the limit was “500 words,” you’d be able to use all of a 400-word essay, and that’s not fair use. It’s also why there’s no percentage. If the limit was one percent, you’d be able to quote  about 6,500 words from Ayn Rand’s Atlas Shrugged, which clearly goes beyond fair use.)

4. The effect on the work’s value. Copyright exists to allow people to profit from their creations. If your use of my work makes it less likely that somebody would buy my work, you’ve harmed its value to me, and that’s not fair use. So you can’t publish so much that nobody would want to buy the original. (When a magazine published fewer than 400 words from President Ford’s memoir, a court ruled that it wasn’t fair use because the magazine published the only part of book people would care about – his decision to pardon Nixon. The court said the magazine had published the heart of the book, and diminished its value.)

As you can see, it’s not a straightforward question. My advice would be to err on the side of caution. When in doubt, seek permission.

--Former Director, Doug Trouten