The Very, Very Basics of Fair Use in Scholarly Publishing

by Neal Swain, subsidiary rights & licensing manager, University of California Press

Copyright and fair use are not subjects that rivet a lot of people, but it’s necessary that an author planning to publish their work understands the fundamentals of both, particularly if their work relies on engagement with the writing or art of others. While I can’t promise to make the subject thrilling, I can promise you a cat picture if you keep reading.

From your experience researching or teaching, you are probably already familiar with the four factors of fair use, which are meant to help establish whether copyrighted material can be reused without seeking permission from the rightsholder. The four factors are taken into account when evaluating for potential fair use are addressed in section 107 of the US Copyright Act, and reproduced here*:

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
Nature of the copyrighted work
Amount and substantiality of the portion used in relation to the copyrighted work as a whole
Effect of the use upon the potential market for or value of the copyrighted work

*NB: in the US, government documents, publications, legal codes, and case filings publications are public domain with some very rare exceptions.

What fair use isn’t is codified law. Instead, it is a set of criteria that you can use to evaluate whether reusing a selection from someone else’s original material in a certain way is an allowable instance of copyright infringement. That is to say, a limited use that doesn’t undermine the copyright holder’s control over, or ability to profit from, their own work.

If your work is available for sale in any format, even if your goals are not financial, your book is a commercial product. That means the risk of impermissible copyright infringement is higher than it would be if you used the same material in a classroom lecture or quoted it in a paper that was not intended for publication. As a result, the litmus test for deciding whether quoting material or reproducing an image qualifies as “fair use” is more rigorous when you’re publishing.

The strongest argument you can make is that the excerpted material is necessary for your successful critical analysis or argument. In other words, you need to prove that your writing relies on the image or text in order for your analysis of that material to be understood, and further prove that you are only using the minimum amount of material necessary to make your intentions understood.

For example, if you were dissecting a poem, under fair use you would only quote a few lines, or part of a line, reflective of the theme under discussion. And if you were analyzing a painter’s brush stroke technique, you might select a close-up image rather than reproduce the entire painting. If you are analyzing the complete work at great length, there may be a persuasive argument to include the entire text (if short) or the entire image, but you would need to be cautious and make certain that you are genuinely addressing all aspects of the complete work.

While putting together your image program and citations, you’ll want to evaluate each piece for how necessary it is to your forthcoming book or journal article; how integral its inclusion is for reader understanding; and whether you want to reproduce more of the material than is strictly necessary for understanding your analysis—and if the answer is yes, you might need to license permission to use the material.

So, what does this triage process look like in practice? Well, let’s start with the cat picture I promised.

This is Calliope. She is a creature of charisma, strong opinions, and a surprising fixation with strawberries. For the purposes of this exercise, not only do you agree that she is an amazing cat (of course you do; you certainly couldn’t imply otherwise to me), but you have decided that you MUST include this picture in your book.

So, which of the uses below might constitute fair use?

Using her picture as a frontispiece, without caption or credit
As part of your regular image program, reproduced in black and white at ¼ page size, with credit but without a caption or textual analysis
In full color, with credit and a caption that says, “This cat is amazing.” There is no discussion of the photo in your draft manuscript about riverine ecology
You’re writing a monograph on the amateur photography people take of their pets and you include this image at half-page size with credit, caption, and detailed in-text discussion about the particular characteristics of the photo and similarities to other photos people take of their pets
The image is included in full, with a credit and caption, but the only text in your book alluding to the image is a line saying “Internet cat photos are the only way I make it through modern life.”

The answers are in the following paragraph, but I’m sure you’ve already made an intuitive assessment. The image or text you want to cite in your book doesn’t have to overlap 100% with the topic of your main thesis, but it must be relevant to what you’re writing about, and you must engage with it in a substantial way. If you don’t, your case for fair use will be weaker and may not stand up against a copyright infringement challenge. Having a strong argument for fair use and retaining those records will help protect your scholarship (and you) from legal liabilities.

Answers: 1)You would need permission from me and should credit the photograph elsewhere in the manuscript, for example, on the copyright page; 2)You would need permission; 3)I completely understand this, but you still need to receive permission; 4)Congratulations! You have a strong case for fair use because your critical analysis of the photo relies on having the visual reference image available for readers and substantively addresses the qualities of the photo; 5) See 3.

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