What's Considered Fair Use?

By: Stephanie Burkhart 

Do you want to frame a chapter of your novel with a quote from a poem? A lyric? A photograph? What’s considered “fair use” and what’s a copyright violation? I thought I’d discuss some of these issue on today’s blog.

Several examples of fair use include criticism (a book review), or using the material in a classroom setting. There’s no set definition, but courts usually apply the following criteria to “fair use:”

#1 The nature of the work. If you’re using it for educational, nonprofit use, most courts would say it’s fair use.

#2 The portion used in relation to the whole work. With poetry and lyrics one 4 line stanza might be considered a substantial part of the quoted work and that would be infringement.

#3 The effect of the use. Is it a low percent? Then it’s fair use.

#4 Do consumers want to check out the original or does your work replace the original? If it replaces the original media, then it’s infringement.

BUT! I’m quoting from a book in the public domain!

Public domain, simply, is a work not covered by copyright law. So how do you know it the media you’re quoting from is in the public domain?

Public domain, simply, is a work not covered by copyright law. So how do you know the “work” is in the public domain?

Answer: If an author has been dead more than 70 years, or if the work was created a 120 years ago and the author’s date of death is unknown.

What about using photographs or illustrations? They’re protected by copyright so the same considerations are used. Photos on the web or published on the web aren’t free just because you can download them. If you’d like to use photos without fear of copyright infringement you can use your own or go to sites like Dreamstime or Fotolia and pay to use their photos.  Some photos on those sites are free, but most are inexpensive.

Most music is copyrighted and if you’re making a book trailer, you’ll need permission to use it. Kevin MacLeod at Imcompetch is a great source of music for book trailers. All he asks for is that you give him credit for using his music in the ending credits.

Question: Have you used a quote, poem, or lyric in your writing? Why?

Reference for this blog: "Your Guide to a worry free writing business," complied by Jessica Strawser, Writer's Digest, FEB 2016, pages 35-38. 

Author Bio: Stephanie Burkhart is a 911 Dispatcher for LAPD. She enjoys reading, chocolate, and likes coffee. She’s also a den leader for her son’s cub scout den. Her books with 4RV publishing include: The Giving Meadow, Brady’s Lost Blanket, Joseph’s Cradle, and First Flag of New Hampshire.

Book Trailer for First Flag of New Hampshire: https://www.youtube.com/watch?v=cIyKiMxpdU8

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Name that Tune

I stumbled into fiction writing without much background, and thus had a lot to learn. One of those things was use of brand names, quoting song lyrics, and the like.

I was working on my first long work of fiction, and passed it by my writing partner.

"You might want to remove the mention of Kleenex, by the way," she said. "It's a trademark, and you could get into trouble."

"But all my main character does is blow his nose," I protested.

"Sure, but why take a chance? In my opinion, he could just as well use a generic tissue."

Would I have gotten into trouble? Most likely not, as I didn't say anything negative about the Kleenex that could have resulted in loss of sales.

Names and titles can't be copyrighted, but brands can be trademarked, and trademarks are also protected by fair use. Copyright and fair use is a complicated subject, and any particular use requires careful analysis. Fair use is judged relative to four factors: purpose and character of the use, the nature of the material being quotes, the amount used, and  the effect on the market.  Small amounts of material and non-commercial use are less likely to be challenged.

So a mere mention of a product, song, or other trademarked or copyrighted material is most likely okay, but if my character chokes on Spaghetti-Os and dies, I might want to switch to a home-made meatball.  Mentioning the name of a song would, again, most likely be all right, but quoting the lyrics without obtaining permission could get me in legal hot water.

What is fair game? Works in the public domain,  titles and short phrases,  facts, theories, ideas. US Government work. Anything published in the United States before 1923 is in the public domain. Anything where the copyright has expired or wasn't registered properly.

Kleenex is a trademark, which is why my writing partner pointed it out.  If you have any doubt as to whether something is protected, the  Patent and Trademark Office website will allow you to search for copyrights and trademarks.  The public domain music site will turn up many more recent tunes in the public domain.

If you're a writer, be aware and take care.


Margaret Fieland is one of the poetic muselings. Their anthology, Lifelines, was published in Nov, 2011. You can find her on the web at http://www.margaretfieland.com/ or at http://poetic-muselings.net/

Related articles

• 10 Big Myths about copyright explained (calvinistview.com)
• "Access and the Public Domain" (digital-scholarship.org)
• If a copyrighted tree were to fall in a crowded area, would we be allowed to hear it? (browneyeproductions.wordpress.com)