Things [Fiction] Writers Ought to Know About Fair Use

Guest post by Literary Agent Lauren MacLeod

It’s a special day!! My agent is here with a special guest post. First a little about Lauren, and then we’ll get right into her thoughts!

Lauren MacLeod is the Vice President of The Strothman Agency and serves on the Association of American Literary Agents board of directors, where she sits on the copyright and contracts committees and co-chairs the communications committee. She graduated cum laude from Emerson College, receiving a BFA in Writing, Literature, and Publishing.

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When Jodi first asked me to write for her substack, she presented me with several potential topics. The first one on the list—by design, to woo me, I assume—was "Things You Wish Authors Understood About Copyright."  

If there is one thing my clients know about me, it's that I have two adorable dogs who love to interrupt zoom calls to let everyone know that IT IS HAPPENING, This Is Not A Drill, THE MAIL IS BEING DELIVERED:

But if they know two things about me, it is that I am an enormous copyright nerd. All agents [should] care about copyright. Still, I am exceptionally focused on it: I took a Copyright for Publishing Professionals certificate course from the Copyright Clearance Center and I even sit on the Association of American Literary Agents' copyright committee. So "enormous copyright nerd" is what they say about me publicly—to each other, I imagine they may refer to that aspect of my professional enthusiasm as "being a total killjoy."  That's because 95% of my copyright nerddom manifest by me deleting exquisite mood-setting epigraphs and crossing out incandescent moments in their manuscript where the characters hear the exact right song at the exact right moment.  

So what is it that I most wish authors understood about copyright? The answer is easy: Fair Use. And to prevent me from getting too far into the weeds with this, let's stick with what fiction writers need to know*. 

Fair use is the rule under which you are permitted to use copyright-protected work without permission. You cannot copyright titles, facts, ideas, or concepts, but "original works of authorship" are protected by copyright. That means while you can title your new novel NIGHTRENDER  (but, um, please don't), you cannot open that novel quoting some of the more atmospheric lines from the NIGHTRENDER  prologue without seeking Jodi's permission because, unlike the title, that quote is copyright protected and it is not fair use. 

You must consider four main factors to determine if something is fair use. Let's trace through the thing I see most often in novels—song lyrics and quotes!

1). The purpose of the use—is this for a commercial, non-commercial, and/or educational work? Is it transformative?

I could really get in the weeds with this, but basically, what fiction writers need to know is if you intend to use song lyrics or open a book with a quote in a novel that you intend to get paid for, that makes your work commercial and thus whatever you are using is unlikely to be considered fair use. If you are getting paid, you almost always need to obtain permission.

One exception here would be if the use is transformative—that means you need to add something new (like a new meaning) or add more value (by adding new insights or aesthetics). This is why both criticism and parodies are generally considered fair use. 

2). Is what you want to use creative or factual? 

The more creative the work you are borrowing from is, the less likely something is considered fair use. Something completely creative, like song lyrics, is very unlikely to be considered fair use, whereas quoting from something fact-based, like a news article, is more likely to be regarded as fair use.  

3). How much of the work are you using? 

The more considerable the amount you are using – which can be looked at both by % of the total length and/or by how integral the amount you would like to use is to the underlying work—the less likely something is to be fair use. This is another reason why song lyrics, where even a few words make up a significant % of the total work, are rarely considered fair use. 

While opening your own novel with a thirty-word quote from a novel is not a significant % of the entire work because the quote is creative, that use is not transformative, and you want to use it for a commercial work, it is still unlikely to be considered fair use.

4). How much does your use harm the underlying value of the original work? 

If your use of the material harms the original copyright owner's ability to generate income from the original work, it is unlikely to be considered fair use. (This calculation is slightly different for a parody.)  

This is where you really see the lawsuits generated. While your use of a quote or song lyric in your novel probably isn't likely to do much harm to the underlying value of the original work—though I suppose there is an argument to be made about permission fees—because both of those things have already failed two or three of the previous tests,  it is still unlikely to be considered fair use. 

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But, dear writer, all is not lost. While I'm going to tell you to just strike all lyrics and every single epigraph from the manuscript because life is short, there are plenty of fish in the public domain sea, and you are a good enough writer to come up with fake lyrics if you really need them, there is, in fact, a sliver of hope if you are willing to work for it:

Something not being fair use just means you can't use it without permission. But if you are willing to put in the time to track down the copyright owner and ask for written permission, maybe, just maybe, they will be willing to let you use it, and, if you are extremely, unimaginably lucky, they might just let you use for free.

--Lauren MacLeod, Aevitas Creative Management 

*Disclaimer: this information is meant only for educational purposes; it does not constitute legal advice.