Dear Rich: I am using a portion of a publicized lecture (regarding a forensic analysis of the crucifixion) of a recently deceased author. It will be published in my book for teaching purposes. I took an excerpt from the lecture and added definitions to elaborate on the meaning of certain words for greater understanding. I put the definitions in parentheses to indicate it was not original information. I am citing the website and all the information I can find about author and I also put the copyright info from 2006. I tried to get permission from the author while alive and got no response to email. I tried to call and the public number and apparently it is not the right one. I have not been able to locate the company who's name is on the copyright.
Am I violating fair use by adding definitions of words he used?
I'm sending you the information and what I have done with it. We found your materials fascinating to read but we cannot officially bless your version as that might be crossing the line between providing legal information and legal advice. We can say that you are likely to have a strong fair use defense (and the defense may even be stronger the less material you borrow). Your use is not necessarily
transformative -- you're using it for the same purpose as the material was written -- but the other
fair use factors likely go in your favor. (It's okay to include definitions, though they don't really make it transformative, either.) As always we must remind you that fair use is a defense raised in court and can only be validated by a judge. So, "getting to yes" can be an expensive trip. In any event, keep a record of your attempt to seek permission as that demonstrates your desire to do the right thing -- a mitigating factor in infringement lawsuits.
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