You are chosen to edit the university yearbook. One of your staff members has chosen a 500-word excerpt to use on the yearbook’s first page. The excerpt is from a short novel (125 pages) that was published last summer and won every prestigious award given to books in Fall 2013. The excerpt seems to sum up the whole point of the novel, but would be perfect as the introduction to the yearbook. You question your staff member about the excerpt, and she says, “No, I didn’t bother to get permission to reprint it. I remember in media law class something was said about not needing permission to use just a little of something.” If the novel’s author (or publisher) sues the yearbook for copyright infringement, what would your best defense be? Would your defense be successful? Why or why

not?

What will be an ideal response?

Your staff member likely is referring to the “fair use” defense, which allows the use of copyrighted material without permission under some circumstances. Fair use existed as a defense to a copyright infringement suit under the 1909 Act, but it was a defense developed by courts rather than being written into the Act. The 1976 Act included the fair use defense and incorporated the test that courts have used. First, what is the purpose of the use? Fair use is for “such purposes as criticism, comment, news reporting, teaching, scholarship or research.” It is not for ordinary commercial uses. Does a yearbook fall into one of the fair use categories? [Argue yes or no.] Second, what is the nature of the copyrighted work? Here, it is a novel, from which the author apparently intends to make money. Third, what is the amount of the copyrighted work used in relation to the whole? Here, 500 words out of 125 pages. Most novels are several hundred pages. But 125 pages still contain several thousand words. [Argue how significant the quoted portion is to the whole.] There also is the question as to the importance of the quoted portion. Is it such a crucial part of the book that it is unnecessary to read the rest of the book? If it sums up the point of the book, it may be unnecessary to read any more of the book. The Harper & Row v. The Nation case is pertinent for both these questions. Fourth, what is the effect of the unauthorized use on the potential market for, or value of, the copyrighted work? Could it be argued that publication in a college yearbook—which is not very widely distributed—would not have much impact on sales of the novel? Or is there an argument that someone who reads the excerpt might want to buy the book?