There are no clear-cut rules on how much of a copyrighted work can be used without permission before it constitutes copyright infringement. However, there are several guidelines and legal principles that determine when copying goes too far and infringes on copyright. This article provides an overview of the factors considered in evaluating potential copyright infringement, and some best practices to avoid crossing the line.
What is Copyright Infringement?
Copyright infringement is the unauthorized use of a creative work that is under copyright protection. This includes copying, distributing, displaying, performing, or making derivatives of the protected work without permission from the copyright holder. Infringement can apply to any type of copyrightable work, including books, songs, movies, software, images, articles, and more. Even using a small portion of a work can be considered infringement if it exceeds the boundaries of fair use (more on fair use below).
Factors in Determining Infringement
Courts weight several key factors when evaluating whether a use of copyrighted material constitutes infringement:
Amount Copied
In general, the more you take from an original work, the more likely it is to be infringing. Even copying a relatively small portion can be infringement if that portion is qualitatively substantial. There is no set number of words, lines, or notes that can be used without permission. However, copying 10% or more of a work weighs toward infringement.
Nature of the Copyrighted Work
Using material from purely factual works is more likely to be fair use than using creative works like novels, songs, or art. This is because facts receive thinner copyright protection.
Purpose and Character of the Use
Non-commercial, educational, or transformative uses tend to weigh more in favor of fair use. Commercial uses or uses that directly copy from an original for the same intent and value as the original lean toward infringement.
Market Effect
If the use negatively affects the market value of the original or deprives the copyright holder of revenue, then it is more likely infringement.
Fair Use
Fair use is a legal defense against a claim of copyright infringement. Fair use allows limited use of copyrighted material without permission for purposes such as education, commentary, news reporting, scholarship, or research.
To qualify as fair use, the use must meet these criteria:
- The purpose of use is one of the foregoing permissible purposes.
- The work is used in a transformative way rather than copied verbatim.
- Only the amount reasonably necessary for the purpose is copied.
- The use does not negatively affect the market for the original work.
Fair use is determined on a case-by-case basis weighing these factors. While no specific number of words, lines, or notes meets the thresholds for fair use, keeping your copying to a very small amount tips the scales towards fair use.
Best Practices to Avoid Infringement
The safest approach is to get permission from the copyright holder. However, here are some best practices to follow if you want to use a portion of a copyrighted work without permission:
- Only use the bare minimum amount needed for your purpose.
- Add new expression or meaning to the portion you use (transformative use).
- Use factual information sparingly, and be careful with creative works.
- Cite the original source to show good faith fair use.
- Avoid using the “heart” of a work (the most qualitatively substantial parts).
- Don’t negatively impact the market for the original.
As a rule of thumb, for short works such as articles, poems, songs, or short stories:
– Quoting a single sentence or two is generally fair use.
– Excerpting a paragraph or two may be fair use depending on context.
– Quoting more than 2-3 paragraphs puts you at high risk of infringement without permission.
For larger works such as books:
– Quoting 1-2 sentences per paragraph for several paragraphs may be permissible.
– Quoting a page or two straight runs a high risk of infringement.
Keep in mind these are general guidelines only and not legal advice. The ultimate fair use analysis depends on the specific facts of each case. When in doubt, err on the side of asking for permission from the rights holder.
Quotations and Statistics
You can generally quote:
– Up to one or two lines of poetry.
– Up to 2-3 sentences of prose.
– Single words or short phrases unique to the work.
– Statistics, facts, and numerical data.
However, make sure you quote only the minimum necessary to make your point, and always credit the source. Do not quote so much that you harm the copyright owner’s market for the work.
Music and Lyrics
– Quoting a single line or vers from a song is generally fair use.
– Quoting 2-3 lines may be fair use depending on context but gets riskier.
– Quoting an entire verse is infringement without permission.
– Copying lyrics to parody the song is generally fair use if it does not closely imitate the original.
– Incidental use of background music in a video may be fair use if not the primary focus.
Do not use more than a few lines of lyrics without permission from the rights holder.
Images
– Using a thumbnail version may qualify as fair use depending on context.
– Quoting an image for news reporting or commentary may be fair use if necessary to make the point.
– Altering an image creatively and for a different purpose than the original is more likely fair use.
– Using the whole image or a high-resolution version weighs against fair use.
In general, stay away from copying entire visual works or copy-pasting images on the web without permission.
Academic Uses
Academic fair use allows reasonable portions of copyrighted works to be reproduced without permission for non-commercial teaching and research purposes in education settings. For example:
– A professor can reproduce portions of materials for a class lesson.
– Students can incorporate quotations in a paper.
– Schools can reproduce content for educational tools and exams.
However, the usage must be spontaneous and time-sensitive for immediate educational purposes. Systematic reproduction that substitutes for purchasing the work leans against fair use.
Parody
Parodies that use another work to comment on or criticize the original are usually protected fair use – but cannot copy the heart of the original work. The parody should not unfairly harm the market for the original work.
Guidelines for Specific Uses
The following are some high-level guidelines for certain uses:
Use | Guidelines |
---|---|
Quoting in news articles | Quote brief relevant excerpts, a few sentences or paragraphs at most. |
Research/Scholarship | Quote only the amount reasonably necessary, tailored to educational purpose. |
Commentary/Criticism | Quote portions directly related to the commentary, not big portions. |
Book reviews | Quote a couple sentences to paragraphs to illustrate your review comments. |
Parody | Use just enough to conjure up the original work being parodied. |
However, these are general principles only and do not guarantee fair use. Always credit your sources and quote the bare minimum necessary for your purpose.
Length Guidelines for Quoting Copyrighted Works
The following table provides very rough guidelines on permissible quoting length for different media types:
Media Type | Safe Length Estimate |
---|---|
Song lyrics | 1-2 lines |
Poetry | 1-2 lines |
Short story/Essay | 1-2 sentences |
Article/Column | 1-2 paragraphs |
Photograph | Thumbnails/reduced resolution |
Painting/Artwork | Portions for commentary/criticism |
Video (instructional) | Clips up to 10-30 seconds |
Video (entertainment) | Only very brief clips (careful) |
Movies | Clip no more than 3-5 seconds |
However, there are no set numbers for fair use. Follow best practices of crediting your source, quoting the minimum necessary, and not harming the market for the original. When in doubt, seek permission from the rights holder.
Public Domain Works
Works in the public domain can be used freely without infringement concerns. Public domain applies when a work’s copyright term has expired. The copyright term length has changed over time:
– Published before 1924: Expired copyright
– Published from 1924-1977: Copyright may persist for 95 years from publication date
– Published 1978 onwards: 70 years after death of author
Some works also have their copyright explicitly released into public domain by the creator. Public domain works can be quoted and reproduced freely without permission.
When is Permission Required?
It is safest to get permission from copyright holders in these cases:
– You want to use large portions of the work or the “heart” of it.
– You want to use it for commercial purposes.
– The work is primarily creative (e.g. art, music, novels, films, photos).
– You plan to distribute or publish the work widely.
– Your use negatively impacts the commercial market for the original.
Fair use cases are often ambiguous. When in doubt, take the time to request permission rather than risk a claim of infringement.
De Minimis Use
De minimis use is when you copy a very small amount that is trivial. A single word or phrase, one note of a song, or a tiny fraction of an image may qualify. There are no definitive quantitative thresholds for de minimis since it depends on context. Use common sense – if it’s an insignificant snippet that average people won’t recognize, it’s likely de minimis.
How to Request Permission
If you need to seek rights clearance and permission, here are some tips:
– Identify the copyright holder – this may be the creator or a publisher/label.
– Send a formal request describing your project and planned usage. Specify the details of what you want to use and how.
– For published works, you can often use the contact information on the copyright page.
– Be prepared to pay a licensing fee in some cases. Copyright owners often charge for formal permission.
– Get approval in writing before using the work and maintain records.
– If you can’t locate the rights holder, you may be out of luck. Be very cautious about using orphan works where you can’t find the owner.
Final Tips
To safely navigate copyright when quoting from protected works:
– Quote the bare minimum necessary to make your point.
– Add value through commentary and contextualization.
– Credit the original creator.
– Transform the usage creatively.
– Avoid harming the market for the original.
– When in doubt, get permission!
While fuzzy, the fair use doctrine does allow you to reproduce small portions without permission under certain conditions. Exceeding fair use puts you at risk of copyright violation. When quoting from protected works, err on the side of using less rather than more.
Conclusion
There are no definitive numbers for how much copying is permissible without infringing copyright. However, staying under 10% of a work, using no more than 1-2 sentences/lines of text or music, keeping your quotes brief, and only copying the minimum necessary for your purpose tips the scales in favor of fair use. Always add new value through commentary, provide proper attribution, and avoid harming the market for the original. When in serious doubt, seek permission from the rights holder directly. While the lines are grey, following basic principles of fairness and minimum necessary usage can help avoid copyright trouble when quoting from protected works.