Here’s a twist. A copyright holder ends up as the one paying in a Fair Use dispute.
With the Fair Use doctrine—a part of the U.S. copyright law—an author is allowed to quote another’s copyrighted material for criticism, commenting, teaching, and other narrow uses. The actual limit on how much can be quoted isn’t defined by the law.
Disagreements are usually settled out of court, but, when a dispute goes to trial, the court generally looks at four things: the purpose of the use, the nature of the copyrighted material, the portion of the work used, and the effect of the use upon the market for the copyrighted material.
In this case, the Estate of James Joyce objected to Stanford University professor Carol Schloss’ use of copyrighted material in a book she was writing. Schloss claimed the material she wished to use fell under the doctrine of Fair Use but took the material out of her book when, she claimed, she was threatened with a copyright infringement lawsuit.
Subsequently she wished to use some of the material in a website and she enlisted the Stanford Fair Use Project to go on the offensive to establish her right to use the Joyce material.
In the end the Estate agreed to pay her $240,000 to settle the case.
This is a reversal of what normally happens when copyright holders attempt to protect their copyrights, and is being hailed by some as better establishing the rights of authors to use copyrighted material in critical works without fear of being sued. In many cases simply the threat of a lawsuit is enough to stop an author from using copyrighted material in any manner, including what may actually constitute fair use.
How does this apply to us?
All of this is interesting, but may lack practical application to the average writer. If you wish to use a large portion of another’s copyrighted material it is still best to ask permission.
To read more on this check out the Stanford Law School Center for Internet and Society blog or this Publishers Weekly article.
For a good, simple explanation of United States copyright laws see the chapter on copyright by John Zelezny in The Portable Writer’s Conference. (Full disclosure: QDB is the publisher and I’m the editor of the Portable Writer’s Conference.)