Fair use
The following is a paraphrase of the original
fair use article, available at
http://splc.org/legalresearch.asp?id=32.
I have edited it to make it more relevant to
the specific issue of booktrailers, or videos
used to support interest in reading books.
This is a very important exception to the
general rule that copyrighted material cannot be
used without consent. It is particularly
significant to the news media, which is in the
business of conveying information, some of it
based on copyrighted work.
Federal copyright law states that an
individual other than the copyright owner can
use a copyrighted work without permission if the
use would be considered a "fair use." The Fair
Use Doctrine is, in effect, a compromise. It
represents a balance by lawmakers of the need to
encourage scientific and cultural progress by
making sure creators get credit for what they do
against society's need for readily accessible
information. Recognizing the inherent conflict
in these two goals, fair use strives to find a
reasonable middle ground. In the case of the
booktrailers, it is desirable for students to
give an acknowledgement of the book's author.
While it might also be useful to acknowledge the
publisher and illustrator, the time constraints
(30 to 45 seconds) involved make this
prohibitive. We want students to get to the
book!
Whether or not the use of a copyrighted work
by a non-owner would be considered a "fair use"
is not always an easy call. There is no black
and white rule. Nevertheless, as
one of the country's leading experts on
copyright law has said: "Ninety-nine times out
of a hundred a scholar who wants to quote a
reasonable portion of a copyrighted work can do
so without obtaining permission as long as the
quotation does not constitute a substitute for
the original." Booktrailers are NOT a
substitute for the original, they should lead
the viewer back to the paper format.
Courts look at four factors to determine if
the use of a copyrighted work is a fair use:
- The purpose and character of the use.
Non-commercial uses for purposes like news
reporting, teaching, criticism or commentary
are more likely to be fair.
Booktrailers in this sense are
non-commercial, although it is our hope and
desire that this website HELPS authors and
publishers sell books.
- The nature of the copyrighted work.
Uses of works containing mostly factual
material like maps or biographies are more
likely to be fair than uses of highly
creative and original works like novels and
cartoons.
Most of the booktrailers will contain at
least the cover and an inside page or two.
Students are encouraged to create original
art to represent authors' concepts.
- How much of the original work is
used. No more of the work than what is
necessary may be used fairly. The test is
both quantitative (how many words of a
200,000 word book are reproduced?) and
qualitative (using the "core" or "heart" of
a work -- no matter how small -- is less
likely to be a fair use).
Booktrailers must avoid giving away the
climax of the book to incite reader
interest.
- The effect of the use on the
commercial value of the copyrighted work.
This is the most important factor. If
consumers are likely to buy the use as a
substitute for the original, it probably
will not qualify as a fair use. Two points
here. 1. No one is making money off of this
site, unless it is the authors and
publishers. 2. Anyone feeling that this site
may be impacting their book sales in a
negative fashion (certainly not our
intention) may ask for the work to be
removed.
Fair use therefore authorizes the use of
limited amounts of copyrighted works for
purposes like news reporting and education so
long as the use does not destroy the commercial
value of the copyrighted work. The booktrailer
website is for educational purposes: to
encourage students to read!