Wednesday, April 20, 2016

Can Publisher Say What is Fair Use?

Dear Rich: I'm an academic co-editing a book with a major university press. Out of an abundance of caution, our editor requested we check on permissions for a number of quotations, etc., with the original publishers. None were an issue til now. But one was an 85 word block quotation transcribed from a novel (and properly cited). The subject of the quotation is critically analyzed and discussed by the chapter author and this discussion is used to help frame the remainder of the chapter, which is not about the novel at all. I submitted the permission form to the publisher (a major US trade publisher). Four and half months later, they just informed us that we need permission and to pay a fee. I subsequently received communication from the publisher stating "Please note that it is up to [the copyright holder] to determine whether a quotation falls into fair use." Is this accurate?
No, it's not accurate, though it is scary. If copyright owners called the shots, it would render fair use meaningless and defeat the constitutional foundations of copyright law. After all, copyright is intended to benefit the public and as the Supreme Court has held, rewarding copyright owners is "a secondary consideration." In other words, think of fair use as means of unshackling the copyright holder's monopolistic grip.
Does your use qualify as a fair use? Before we discuss fair use, we provide our usual caveats: only a court can make the final decision; and you may not be able to afford being "right." Although judges consider the four fair use factors when making a fair use analysis, we think the key issues in your determination are the amount of material used (in relation to the complete novel), whether your use is transformative, and whether it serves as a"market substitution" for the novel. Using that criteria, we think your quotation qualifies as a fair use.
Less is more. Although courts discourage blanket rules as to the percentages permitted for fair use, as a general rule, less is almost always better. For example, it was a fair use when a biographer paraphrased less than one percent of the material from unpublished letters of author Richard Wright. Considering that the word count for a typical novel ranges from 70,000 to 115,00 words, your use of 85 words is negligible -- probably less than one-tenth of one percent.
Transformative/market substitution. The Supreme Court has emphasized "transformative use" as fair use benchmark. Providing a commentary and critical analysis of 85 words of text from a novel seems to clearly fulfill a transformative purpose. Also crucial to fair use analysis is an underlying economic issue: Does your use (reproducing 85 words) create a market substitute for the original work (the novel)? That is, does it in any way displace the market for the novel? We think not.
What to do? Based on the information you've provided, the publisher is either ill-informed or fishing for fees (or some combination). Unfortunately, the publisher is also well-heeled and capable of bankrolling an expensive lawsuit. On the other hand, the publisher may be bluffing, or may come to its senses realizing it can't afford the lawsuit, the potential negative publicity, or worse still, the legal precedent that may result from the case.
P.S. Dept. Check your contract with the university press. If it requires you to indemnify for lawsuits, you would have to foot the bill.