Violations often occur when the use is motivated primarily by a desire for commercial gain. The fact that a work is published primarily for private commercial gain weighs against a finding of fair use. For example, using the Bob Dylan line "You don't need a weatherman to know which way the wind blows" in a poem published in a small literary journal would probably be a fair use; using the same line in an advertisement for raincoats probably would not be.
A commercial motive doesn't always disqualify someone from claiming a fair use. A use that benefits the public can qualify as a fair use, even if it makes money for the user.
For example, a vacuum cleaner manufacturer was permitted -- in its advertising -- to quote from a Consumer Reports article comparing vacuum cleaners. Why? The ad significantly increased the number of people exposed to the Consumers Union's evaluations and thereby disseminated helpful consumer information. The same rationale probably applies to the widespread practice of quoting from favorable reviews in advertisements for books, films and plays.
Copying From Unpublished Materials
When it comes to fair use, unpublished works are inherently different from published works. Publishing an author's unpublished work before he or she has authorized it infringes upon the author's right to decide when and whether the work will be made public. Some courts have held that fair use never applies to unpublished material. As you might expect, publishers, authors' groups, biographers and historians were highly critical of this view. They got Congress to amend the fair use provision in the Copyright Act to make clear that the fact that a work is unpublished weighs against fair use, but is not determinative in and of itself. If the other fair use factors favor fair use, it can be permissible to use part of an unpublished work without permission. This is particularly likely where the use benefits the public by furthering the fundamental purpose of the copyright laws -- the advancement of human knowledge. For example, a court held that it was a fair use for a biographer to use a modest amount of material from unpublished letters and journals by the author Richard Wright. (Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).)
When Is a Use a 'Fair Use'?
There are five basic rules to keep in mind when deciding whether or not a particular use of an author's work is a fair use:
The purpose and character of your intended use of the material involved is the single most important factor in determining whether a use is a fair use. The question to ask here is whether you are merely copying someone else's work verbatim or instead using it to help create something new. The Supreme Court calls such a new work "transformative." The more transformative your work, the more likely your use is a fair use.
Without consent, you ordinarily cannot use another person's protected expression in a way that impairs (or even potentially impairs) the market for his or her work. Thus, if you want to use an author's protected expression in a work of your own that is similar to the prior work and aimed at the same market, your intended use isn't likely a fair use.
For example, say Nick, a golf pro, writes a book on how to play golf. Not a good putter himself, he copies several brilliant paragraphs on putting from a book by Lee Trevino, one of the greatest putters in golf history. Because Nick intends his book to compete with and hopefully supplant Trevino's, this use could not be a fair use. In effect, Nick is trying to use Trevino's protected expression to eat into the sales of Trevino's own book.
An interesting example is when a teacher copies parts of books for students to use. In one recent case, a group of seven major publishers went to court and stopped a duplicating business from copying excerpts from books without permission, compiling them into "course packets" and selling them to college students.
Some people mistakenly believe that they can use any material as long as they properly give the author credit. Not true. Giving credit and fair use are completely separate concepts. Either you have the right to use another author's material under the fair use rule or you don't. The fact that you attribute the material to the other author doesn't change that.
The more material you take, the less likely it is that your use will be a fair use. However, to preserve the free flow of information, authors have more leeway in using material from factual works (scholarly, technical, scientific works, etc.) than to works of fancy such as novels, poems and plays. This is true especially where it's necessary to use extensive quotations to ensure the accuracy of the information conveyed.
As a general rule, never quote more than a few successive paragraphs from a book or article, or take more than one chart or diagram. It is never proper to include an illustration or other artwork in a book or newsletter without the artist's permission. Don't quote more than one or two lines from a poem. Many publishers require their authors to obtain permission from an author to quote more then a specified number of words, ranging from about 100 to 1000 words.
Contrary to what many people believe, there is no absolute word limit on fair use. For example, it is not always okay to take one paragraph or less than 200 words. Copying 12 words from a 14-word haiku poem wouldn't be fair use. Nor would copying 200 words from a work of 300 words likely qualify as a fair use. However, copying 2000 words from a work of 500,000 words might be fair. It all depends on the circumstances.
The more important the material is to the original work, the less likely your use of it will be considered a fair use.
In one famous case, The Nation magazine obtained a copy of Gerald Ford's memoirs before their publication. In the magazine's article about the memoirs, only 300 words from Ford's 200,000-word manuscript were quoted verbatim. The Supreme Court ruled that this was not a fair use because the material quoted (dealing with the Nixon pardon) was the "heart of the book ...the most interesting and moving parts of the entire manuscript," and that pre-publication disclosure of this material would cut into value or sales of the book.
Determining whether your intended use of another author's protected work constitutes a fair use is usually not difficult. It's really just a matter of common sense. There is no more commonsensical definition of fair use than the golden rule: Take from someone else only what you wouldn't mind someone taking from you.