Avoiding Copyright Infringement in Your Work

by Jennifer Tribe

Published on this site: February 21st, 2004

The information in this article is provided as a rough guideline for writers and other information producers. However, I am not a lawyer and this article does not constitute legal advice. Readers are advised to seek appropriate legal counsel in copyright matters.

It’s not uncommon for authors to quote other authors, especially in non-fiction works. There are times when we want to bring in someone else’s work to help build our own arguments, lend weight to a statement of fact, or collect or refute the conventional wisdom on a topic. At other times, we may want a certain image for our book cover, or to show a clip from a TV program to illustrate a point.

Whatever the reason, the question soon becomes whether we have permission to use these materials or not. Outright plagiarism –- that is, using another’s work and trying to pass it off as your own –- is obviously illegal.

But what happens when you want to legitimately reference someone else’s work. What do you need to know, and when do you need to seek explicit permission?

WHAT IS PROTECTED BY COPYRIGHT?

Copyright protection applies to a wide range of works including

• Written works such as books, pamphlets, articles, reports, screenplays and scripts
• Artistic works such as photographs, illustrations, paintings and maps
• Musical pieces including both the music and any accompanying lyrics
• Video and sound recordings
• Dramatic performances such as live plays, and
• Some portions of computer programs.

This is not a comprehensive list but you get the idea. Just about any creation in a fixed form is protected by copyright. Accordingly, almost anytime you wish to quote, reference or reproduce someone else’s creation in your own work, you will need to secure permission from the copyright holder.

For example, you would need to seek permission to

• Quote another author in your book
• Use an original piece of music on your CD
• Include a screen capture from a piece of software in your technical manual
• Include a map in your special report, or
• Use a photograph on your web site.

There are some exceptions, of course.

WORKS IN THE PUBLIC DOMAIN

You don’t need to secure permission for items that are in the public domain. In the U.S., any work produced before 1923 lies in the public domain. This means, for example, that you don’t need permission to quote Shakespeare or use an image of the Mona Lisa. But be careful! Even here, the rules can get tricky.

For example, if you are quoting from Tolstoy’s novel War & Peace in English, you are actually quoting the translation and not the original. The translation, if created after 1923, is likely copyrighted. Edited versions of public domain manuscripts may also be copyrighted.

When using images of public domain artwork, be sure the photograph or drawing of the artwork is also in the public domain. The original painting might be free for you to use but a particular image of it may not be.

Not sure if a work is in the public domain? For a fee, the United States Copyright Office (http://www.copyright.gov) will do a complete copyright search for you.

FAIR USE

Fair use provides some allowances for use of copyrighted material under certain circumstances. (In Canada, this is called fair dealing. The underlying principle is the same but the legislation is different.)

Information producers should be very cautious about using fair use as a justification for incorporating copyrighted material without permission. The legal parameters of fair use are vague and open to wide extremes of interpretation in court.

For example, one of the criteria the courts will consider in determining fair use is the amount of the copyrighted work that was used in relation to the size of the work as a whole. Substantiality, or the importance of the quoted piece, is also looked at.

Many writers therefore think that if they only quote a sentence or two from an entire book they are safe. They may very well be -- but they could just as easily not be. In 2000, self-help expert Anthony Robbins was successfully sued for more than $650,000 for using a couple of two-word phrases from another author without attribution or permission.

If all you want is to quote a line or two from someone else’s book, AND you give them full credit when you quote them, you will not likely run into troubles with copyright infringement. However, this is not a legal guideline. When in doubt, err on the side of caution. It can’t ever hurt to get permission but it could definitely hurt you not to have it.

© 2004 Juiced Consulting.
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