Monday, September 8, 2014

Can I Quote Carlos Castaneda?

Dear Rich: After many years of compiling Carlos Casteneda's work and systematically organizing it, I have the basic notes to begin writing a study guide that will use a good deal of quotation. Casteneda is said to be the father of the new age movement and I believe the attorneys for the Casteneda estate are most likely quite protective of the work. I want to avoid encroaching in any way on the copyrights. Here are some considerations. Most of the information I am publishing has been published before between 30 - 40 years ago. I believe my research to be "transformative" as I have compiled the works in an academic and systematic way never done before. My compilation and thus retelling is entirely new and my own. I wish to make no money on this endeavor and would be happy to donate any proceeds (if there are any). Casteneda himself has stated that he did not make up any of the information in his books. Therefore, his works can be argued to be more factual than creative. His first book was his undergraduate thesis at UCLA, and his third book was his graduate thesis. This is truly an academic endeavor to be used by anthropologists and anthropology students in an academic setting.  In the unabridged version of your letter, you mentioned several fair use cases: Love v. KwitnyTwin Peaks v. Publications Int’l, Ltd., Warner Bros. Entertainment, Inc. v. RDR Books, (and check out Castle Rock Entertainment, Inc. v. Carol Publ. Group), all of which are summarized at our Stanford fair use post. (You also cite Cambridge University Press v. Georgia State University, which is currently on appeal at the 11th Circuit.) One common thread through many of these lawsuits is whether the infringing work used too much of the copyrighted work. When too much is taken the use is no longer "fair" because judges believe that the consumer is buying the infringing work for what it takes, not what it adds.
How much is too much? We don't know how much you've taken, but that will likely be the key issue (not whether you are a nonprofit, or whether Don Juan is fact or fiction). When measuring "how much is too much?" judges sometimes look to the total number of words taken, or sometimes they look to the percentage taken (the court in Cambridge University Press proposed an educational fair use standard of 10% from a 10 chapter book). In other cases, quality of the quotes, not quantity is what matters (that is, did you take the "key" quotes that comprise the heart of Castaneda's works?). At the same time, other factors, especially your educational purpose weighs in your favor. Having a transformative purpose helps but keep in mind the defendant in Warner Bros. Entertainment, Inc. v. RDR Books had a transformative purpose but still lost his battle over using Harry Potter.
Is it fair use? We can't tell you. A copyright attorney, after viewing your work, may provide you with a fair use opinion but unfortunately the only person who can tell you for sure is a judge ruling in a lawsuit ... always an expensive proposition. Of course, this will only be an issue if somebody is enforcing Castaneda's rights, that party sees your work and can afford to pursue you.