There was a Facebook post that went up a couple weeks back, in which the author stated she would not like people to “share” from her ARC. She stated in this post that it was illegal and that it was infringing on her copyright because the ARC is copyrighted material. The author later recanted in a comment, saying she misspoke, but the discussion had already been screen capped, discussed in forums and pondered over. Was she right, was the main question? Book bloggers everywhere were shivering…are all those quotes and snippets we love to post illegal?
Basically, the author was wrong in some ways – but right in others.
The whole thing had me scratching my head, though -how right was she? How wrong?
Now, again, I stress, the author retracted her statement and I’m not writing this post to start a row with the author. My point is that it sparked a conversation that I thought needed to be expanded upon. Her retraction came in a comment later, saying she meant large excerpts, pages, multiple paragraphs, scenes etc. This is partly correct, but still a muddling of the actual truth. It did settle everyone down, though, but the confusion was still there. Especially when in the discussion of this topic – the term FAIR USE was dropped. And Fair Use is what you would respond to this author’s argument with. As a blogger, I have Fair Use of your copyrighted material. But, as an author, she has right to first publication and it’s an ARC which hasn’t been published yet. So who’s right? And…
WTF is Fair Use?
Let me preface this with a simple warning, I am not a lawyer. I do not play at being a lawyer. I have done my research and have taken a lot of copyright classes in college (focused on art) because graphic designers can get in a lot of trouble with copyright if they aren’t careful and they have to protect their own work. Just keep that in mind. If you have a serious issue, please contact a paid professional. On that note, let’s get back to the topic at hand: the term Fair Use.
Fair Use is a U.S. Trademark law. Section 107 of the Copyright Act to be precise.
Fair Use is protection not for the holder of the copyright, but for the person or party using the copyrighted material (that’s you the blogger). Sounds dastardly, but it’s a good thing. Because as a book blogger, you are the person filching the copyrighted work. Stop gaping – it’s true. The moment you post a snippet. The moment you grab a few lines from that book – guess what you are doing? You are posting copyright material on your blog. We don’t like pirates right? Well, who decides where piracy starts and begins? Is the full book illegal? Or is three chapters? The government has to decide that – but a “simple” way they’ve come up with deciding what is “fair” and what is “theft.” They do this by labeling the people that can honestly “take” the copyrighted material and use it, labeling that “correct” usage “Fair Use”. Sounds, simple right?
You are fairly using the material if you are using the copyrighted material to:
This is the one that mainly pertains to reviewers & book bloggers. You are criticizing the book when you review it. Within the criticism, you can post snippets, lines, excerpts to expand on your criticism. Even if you post – “I love this book so much…this is why:” and post a snippet or excerpt. That is criticism. But, if you are posting whole excerpts of the book so you have content for your blog, especially if you accept advertising or associate cash – this is where you step over a line. If it’s a promo piece that the author sent you, or their hired PR company sent you- you are in the clear. You’ve gotten their permission. If you took it upon yourself to copy and paste, or type out entire paragraphs of the work – you can be in trouble for copyright infringement. My advice – make sure to include some criticism of the work when posting about it. It doesn’t have to be negative. Positive criticism counts too! Want to snap a picture of the page you are reading for Instagram? Put a heading: “Enjoying XXX book by XXX, the characters are off-the-charts.” Simple workaround.
Stop thinking in lines of, “I’m promoing this book, so the author needs to shut-up. I can do what I want.” There are restrictions and there are courtesies. And just because you are promoing the book does not mean you have the right to do it – especially if your associate links are all over it.
It should also be noted that with ARCs – the material is more protected because it is considered Unpublished. The publisher and author have a right that is called the “right to first publication.” Meaning, the work has not been published yet, so why should a blogger or reviewer be the first one to publish the content? Again, this is where the “ask for permission” comes in. You are still protected under Fair Use, but the “first publication” will be taken into consideration if the matter did go to court. If you quote from an ARC and the publisher or author asks you to remove it, I would suggest removing it. Quoting from a published work, you don’t have to ask permission.
For more on this, check out my source: Fair Use – Copyright and Scholarship
Comment Fair Use
This is where parody and satire come into play. Take into account two names you might recognize. “2 Live Crew” and “Weird Al Yankovic” both artists have taken other people’s music and created parodies. They’ve also been sued or threatened with a suit because of it. “2LC” was sued because of its use of PRETTY WOMAN and Weird Al was threatened by Lady Gaga after he parodied BORN THIS WAY. Weird Al does ask permission every time he makes a parody to avoid a suit, even though he is protected under the Fair Use act – but anyone can sue. Remember this. And to avoid costly court battles, he ASKS permission. “2 Live Crew” did go all the way to the Supreme Court, though, for them to come to the conclusion that parody is protected under Fair Use. But I’m sure they spent a small fortune in lawyer’s fees doing so.
Report or Teach
This is quite obvious, but book blogging can come under this again. Reporting on the book. You might be reporting that it releases today, or reporting that the movie option sold. If you are reporting on it – you can post about it, snippets and lines etc. Teaching the book, you are free to do this, also. But, again – the Courts will look at how much of the book has been “posted” within the course. You can’t photocopy the book and hand it out to all your students, that’s copyright infringement. But you can grab excerpts and portions of the books for study.
Research Fair Use
Doing a paper on “Fifty Shades of Grey”? You can claim Fair Use when you quote snippets from it for your paper. Have fun you are protected under copyright.
Overall, when crafting your post about a copyrighted work, keep in mind that you are protected under the Fair Use act. If your use is within the above scopes.
When given an ARC, you might notice that there is usually a note to reviewers that states: “beware when quoting” because of the fact that the ARC is not a finished work. And the area quoted might change. This is asked of you as a courtesy and not as a copyright law. But again, the publisher and author can still pull the “right to first publication” if they so choose. Do I think quoting from an ARC will go to court? No. But, it might make the publisher take you off their ARC list. Ask permission.
There are also a few key things to keep in mind with regard to Fair Use and copyrighted material:
- A book cover is copyrighted material, but it is considered Fair Use when posting it, as long as you refrain from changing it or claiming it is your own. The slippery gray slope is when bloggers cut up pieces and parts of the cover for “promo” or use pieces of the cover for artistic reasons. Technically you are not supposed to do this. If you get permission you are golden. If the author/publisher/cover artist asks you to remove it – they are within their rights. I know you think you are promoting their work and they should be “grateful.” But, consider their side.
- Don’t take too much! There is no defined amount in the law. A few paragraphs should be enough for your review. Five chapters – don’t go there. Even one chapter might be pushing it.
- The courts also take into consideration the usage and effect of the use upon the copyrighted work. Are you using the content for profit? And did your use of it negatively effect the copyrighted work? This is hard to define, and could be another gray area when it comes to negative reviews and large excerpts. Again, I would only encourage lines of texts and not large portions unless you have permission. If the author does contact you to remove your review – because of copyright – you are within your right to state that you are protected under Fair Use.
- Fair Use with regard to images is another touchy subject. Grabbing an image online to “enhance” your blog post is not Fair Use. You would technically only be able to use an image (which is a copyrighted work by the photographer or graphic designer) if you were critiquing that image or piece of art, commenting on it, using it for reporting (reporting on the image – not for enhancement of the news report) or for teaching purposes. Teaching might be gray too – because if you show an image of a duck and are teaching about said duck – is it Fair Use? Not really. Again it’s about that image which holds the copyright, so technically you could be teaching Art Appreciation and teach about the photo – but not use it to enhance your lecture on ducks. My suggestion when using images – buy stock, or get them from free stock sites. Again, book covers and product shots are not included – because you are “critiquing” the product.
Just remember, this FAIR USE is protecting you, but anyone can sue about anything in the good old U.S.A. So, if someone makes a fuss to remove it…it is up to your judgment to keep it up or take it down. But, now you know you’re protected.